Short answer: not very private – especially content created after you were injured. You may be forced to provide some or all your Facebook pages to the other side – even if you have private settings. In some instances, (factors set out below), you may even be forced to hand over your computer hard drive to the other side.
In February 2009 the Superior Court of Justice of Ontario ruled that any Facebook pages “that relate to any matter in issue in an action” must be disclosed to the other side (Leduc et al. v. Roman http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6838/2009canlii6838.html).
Although Ontario court decisions aren’t binding on British Columbia courts, I suspect our courts will go in a similar direction.
In Chapter 3 of my book “BC Auto Injury Book: 9 Ways to Protect Your Claim” I addressed online Web pages that are available to everyone on the internet. Now, you also need to review and consider all your private internet pages. In fact, if you’re in a lawsuit, your entire computer hard drive is vulnerable to production.
In the Leduc case the Ontario Court concluded that it is reasonable to infer that social networking sites likely contain some content relevant to the issue of how a plaintiff has been able to lead his or her life since the accident. If the other side isn’t satisfied with the internet pages disclosed, they can apply to the court for full production of every internet page.
Not every party to a lawsuit will have to produce their social networking internet pages. In fact, I suspect the law will develop in this area in a fashion where it is difficult to predict whether a court will order a party to produce. Consider the requirement that a document (such as a Facebook page) must relate to any matter in issue in an action. What this means is if information on a Web site sheds light on something you’re claiming for – such as loss of enjoyment of life or loss of future income, then you must disclose it. For example, if you say under oath at an examination for discovery, that you couldn’t play volleyball since your car crash and then there’s a photo of you playing beach volleyball after your car crash posted on your site – the other side will want that photo.
The tricky part for the other side is knowing whether your private Facebook pages are relevant. That’s why the Leduc decision in Ontario is so important – it concluded “that it is reasonable to infer that social networking sites likely contain some content relevant to the issue of how a plaintiff has been able to lead his or her life since the accident.”
Another example: suppose your job required you to sit for 7 hours a day in front of a computer, but you claim your car crash injuries prevent you from doing your job. Then suppose the other side suspects that you use Facebook 7 hours per day at home. You could see how your Facebook use (computer use) could be sought by the other side). Brain injury cases will also prompt defendants to seek hard drives to see what kind of capability (writing, communicating, etc.) a brain injured plaintiff can do.
The second example is important because many jobs require solely working on a computer. In cases where an injured person claims for loss of future income because they can’t work on a computer, the other side will routinely want the injured person’s entire hard drive to inspect computer use.
I can see how one might conclude frequent personal computer use would mean a person can perform a computer job. However, I caution and would argue that personal, passive computer use is different than working on computers in the workforce. Naturally every job and personal use will be different. Again, when these issues arise in a claim – expert opinions about intensity and ability may be welcome to determine whether personal, passive computer use means an injured person can be employed working on a computer.
These two examples illustrate a distinction the BC courts have made to date (see Bishop v. Minichiello (http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc358/2009bcsc358.html for full discussion) – hard drives as a filing cabinet vs. being a document. This distinction is important because you must produce relevant documents, but you typically don’t have to produce filing cabinets. To date, if your computer use is relevant, then you may have to hand over your entire hard drive. If it’s the content on your hard drive that is sought (i.e. e-mails, Facebook pages, etc.) then you need to provide a list of the relevant documents on your hard drive (not the entire hard drive). If the other side has good reason to believe (and can show) that a party didn’t disclosing all relevant documents, they can ask the courts for some way to ensure all documents are disclosed – and that my include handing over an entire hard drive.
Fortunately our courts also recognize that computer hard drives contain lots of personal information, most of which is probably not relevant in an injury action. The common argument against disclosing an entire hard drive is it violates privacy rights – it’s akin to a search (unreasonable search and seizure is a protected right under the Canadian Charter of Rights and Freedoms). In the Bishop case, the defendant in a personal injury action wanted the plaintiff’s hard drive to inspect computer use (specifically Facebook usage) during a specific hours each day. The injured plaintiff claimed fatigue affects employment. The defendant, therefore, wanted to see whether the plaintiff was on Facebook between 11 pm and 5 am. The Supreme Court of BC considered the Facebook pattern use relevant and ordered the plaintiff’s family computer hard drive disclosed. However, only the data for the stipulated hours and Facebook use was to be extracted by an independent computer expert chosen by both the plaintiff’s and defendant’s lawyers.
The area of electronic document production is one that is, and I suspect, will continue to be very case specific. For every case that orders production, there will be cases that don’t order production. That said, to date, some of the relevant factors the British Columbia and/or Ontario Courts considered when deciding production of private Facebook pages and/or hard drives are as follows:
1. How relevant are the documents? This is fundamental. If there is only a slight chance that a few of thousands of documents may be relevant – disclosure is more unlikely.
2. Relevancy vs. time, expense, and confidentiality.
3. Facebook: courts may consider the number of “friends” who have access to your Facebook page – in Leduc, the court says the fact the plaintiff had 366 “friends” with access showed that the plaintiff “didn’t have a serious expectation of privacy”. The court doesn’t say how few would infer greater privacy – but the point is the number of friends has some (perhaps very little) relevancy.
4. Scope of the request – does one side want everything for a fishing expedition (hoping to find something relevant), or is the request narrow and more precise (which is less intrusive to the party having to produce)?
5. Nature of the claim – consider the photographs that could be extracted and used. The claim for “loss of enjoyment of life” is almost always claimed in personal injury cases, and it opens the door wide open to disclosing social networking pages and information created since an injury.
6. Can the information be extracted by an independent expert who can restrict extraction to relevant information (i.e. a particular user or particular types of documents)? The more that hard drive content / data / patterns can be extracted with precision, the more likely a court (in my view) will order production.
7. Consider s. 8 of the Canadian Charter of Rights and Freedoms: is the production order sought more a search and seizure rather than disclosure of relevant documents? If so, production is not likely. Civil lawsuit rules don’t trump the Charter.
8. Regarding hard drives – if the hard drive is found to be a filing cabinet, then a court will most likely not order it produced. However, the metadata of the hard drive (i.e. computer use patterns) is a document which may be disclosed and produced. Also, relevant documents on the hard drive must be disclosed.
At the end of the day, our courts in British Columbia encourage full disclosure so that both sides can accurately assess a case. I suspect this approach will continue with electronic documents.
Facebook and hard drives aren’t the only data sought – parties seek internet browser histories, instant messaging histories, e-mails, etc. You name it, opposing parties want it. Obviously stopping all computer activity is nearly impossible these days. So, what should you do if you’re an injured plaintiff?
1. Stop all social networking activity – ideally deactivate your sites. If you’re unwilling to do this, then at the very least be very, very aware of what you post and where you pose for photographs. Obviously you can’t control what other people will post on their sites. However, if you don’t have any social networking activity on your sites after your injury, then there’s no relevant information you need disclose.
2. Mark every document about your lawsuit, after your car accident, on your computer with “Without Prejudice” – this will help protect those documents as privileged (privileged documents aren’t provided to the other side).
3. If you’re keeping notes after your injury – indicate at the beginning of a file or folder that everything in the document and/or folder is created “in contemplation of my lawsuit” – this will help protect those files and/or folders as privileged.
4. Tell your lawyer all your Web sites (private and public).
5. From the date of your injury to claim resolution, conduct yourself online and on your computer as if the other side and a jury of 8 people will read or review what you create. The exception to this is all your communications with your lawyer.
I’ll end on a positive note (from a claimant’s perspective). Your online pages – especially the content up to your accident, can help your case. Your social networking sites can paint a vibrant picture of your life, and if you can’t do some or much of what you did before, your social networking sites can help show illustrate your losses.
