In Leduc v. Roman, Mr. Justice David M. Brown allowed in part an appeal from an order of Master Dash, dealing with the Facebook page of a plaintiff in a personal injury action. The Master had refused the defence motion, that the plaintiff be required to produce all information on his (private) Facebook website. But Brown J. ruled that the defence should be afforded an opportunity to cross-examine the plaintiff on his affidavit of documents, to inquire about the content of the Facebook profile. This sort of motion is undoubtedly going to become much more common, in a variety of contexts, so Justice Brown’s ruling is instructive.
The plaintiff had been injured in an MVA and, in his lawsuit, claimed damages for, among other things, reduced enjoyment of life. Counsel for the defendant examined him for discovery but asked no questions about the plaintiff’s Facebook profile, not knowing that the plaintiff had one. However, in a subsequent medical examination, the plaintiff told the examining psychiatrist, that he (the plaintiff) did not have friends in the area but “had a lot on Facebook”. That information was incorporated into the doctor’s report of his examination.
The publicly-accessible part of the plaintiff’s Facebook profile contained only a photograph and the plaintiff’s name. The balance of the profile could only be viewed by persons to whom the plaintiff had granted access (his “Facebook friends”).
With that information, counsel for the defence brought a motion before Master Dash, asking for (i) the interim preservation of all information contained on [the plaintiff’s] Facebook profile, (ii) production of all information on the Facebook profile, and, (iii) the production of a sworn supplementary affidavit of documents.
On a preliminary ruling, the Master did order that the plaintiff copy and preserve every page from his Facebook profile until the hearing of the main motion. The plaintiff agreed to produce a supplementary affidavit of documents.
The Master refused to order the plaintiff to produce the pages from his Facebook profile that were not publicly accessible. He characterized the motion as a “fishing expedition” and focused on the fact that the defendant was unable to adduce any evidence as to what might be found on the site.
However, the Master did find that photographs or other information posted on the site, that showed the plaintiff’s activities or his “other enjoyment of life”, should be listed in the supplementary affidavit of documents that he had agreed to deliver. The Master was quite satisfied that the pages on the site constituted “documents” and that they lay within the plaintiff’s control.
The Master also appeared to place weight on the fact that no questions had been asked about the plaintiff’s Facebook profile when he was examined for discovery: “[t]he Defendant had an opportunity to ask at discovery whether the Plaintiff had photos – either a hard album or electronically that are demonstrative of his lifestyle but I have no evidence such questions were asked.”
So, the Master thought that an adequate foundation had not been laid for an order that the pages of the site be produced to the defence.
According to Justice Brown, “Master Dash was not prepared to follow the principle articulated by Rady J. in Murphy v. Preger that one could infer from the nature of the Facebook service the likely existence of photographs on the plaintiff’s private profile. Master Dash characterized as ‘speculation’ the drawing of any inferences from a ‘typical’ Facebook profile about what content likely would be found on a specific Facebook profile. Master Dash also distinguished the Murphy decision on the basis that in that case the plaintiff had posted photographs on her public Facebook profile, had given the defence photographs as part of her productions, and evidence existed that 366 people had access to her site.”
However, Justice Brown came to a different conclusion. He thought that Facebook, by its very nature, is a vehicle by which people make available to others information about themselves, “what they like, what they do, and where they go, in varying degrees of detail”. He did not think that the defence had been on a “fishing expedition”, saying, “[i]t is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc [the plaintiff] has been able to lead his life since the accident.”
In the result, Justice Brown granted leave to the defendant to cross-examine the plaintiff on his supplementary affidavit of documents, about the nature of the content that the plaintiff had posted on his Facebook site.
The case is interesting in a couple of respects. Most obviously, it deals with the relatively recent phenomenon of how social networking websites are to be treated for purposes of discovery.
But more fundamentally, both Master Dash and Justice Brown seem to have taken it as a given that photographs of the plaintiff in a personal injury action are documents within the plaintiff’s control and that any such photographs that are demonstrative of the plaintiff’s lifestyle (assuming that that is an issue in the litigation) should be disclosed in the affidavit of documents. That would be true whether the photographs are printed or electronic and whether they are posted on the internet or exist only on a personal hard drive.
Justice Brown then went further, saying that where few or no documents are disclosed by a Facebook user, the defendant should have leave to cross-examine the plaintiff on the affidavit.
It appears to us that at a minimum, the decision would enable a defendant to insist on a further and better affidavit of documents if it learns that the plaintiff has photographs of himself or herself or has a Facebook site that have not been referred to in the original affidavit of documents. It will probably now become standard practice to ask for the inclusion of such documents in the plaintiff’s affidavit.