Case Report – Another FaceBook production order made

20 Dec

On December 2nd, the New Brunswick Court of Queen’s bench ordered a plaintiff in a disability insurance claim to obtain “a history of her computer account use” from her ISP and “request” that her ISP generate a record accounting for her FaceBook use. These orders are becoming very common, but I will make a few notes:

  • The tactic of seeking information through the plaintiff but held by a third-party is unique. The order seems bound to lead to delay and frustration (see here for an example) but at least is backed by the plaintiff’s right of access to personal information in PIPEDA. Perhaps the defendant didn’t like its chances of obtaining an order for forensic inspection of a home computer.
  • Ferguson J. does a nice review of the applicable principles, and reminds us that the Supreme Court of Canada has endorsed necessity as a principle for dealing with production disputes over highly sensitive information by including this quote from A.M. v. Ryan: “I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truly and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a license to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.”
  • Ferguson J. does not, however, apply this filter in the circumstances, because he finds that the type of information subject to the order (mere usage data) is not part of the plaintiff’s “biographical core” of personal information. The biographical core concept, from the Supreme Court of Canada’s R. v. Plant decision, is a concept that restricts certain information from court protection.

Carter v. Connors, 2009 NBQB 317.

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4 Responses to “Case Report – Another FaceBook production order made”

  1. Omar Ha-Redeye December 23, 2009 at 2:48 pm #

    It figures.

    I was writing on this case for Slaw after the story broke on CBC today, and when doing my research noticed that you beat me to it.

    Good for you.

  2. Dan Michaluk December 23, 2009 at 11:59 pm #

    Thanks Omar.

    I’m surprised this made the news. Perhaps it’s because I’m a management lawyer, but I’m starting to feel a little “law and order” on this issue. If “digital footprint information” is relevant I have a hard time accepting that one’s privacy interest should justify non-production. We are, after all, searching for the truth.

    What might be cause for more concern is the “semblance of relevance” standard for production, which allows for a measure of fishing. As highlighted in this case, it allows for production of information that “may lead to the discovery of admissible evidence.”

    Even so, I’m not sure a privacy interest should overrule the interest in allowing parties to litigation to discover the truth. The law does recognize certain privileges, but privileges are based on a need to protect a specified public interest. I may be treading in dangerous water by raising this, but doesn’t a privacy interest belong to an individual?

    I do think that there’s so much digital evidence available and its generally costly to get at that there needs to be a limit on how much it is used in litigation if we are to have effective and affordable litigation. I’ve heard people query whether the concept of proportionality that will become enshrined in the Ontario rules in a matter of days (along with a “relevance” standard for production) will support arguments that invasive production is not proportional production. Privacy protection certainly was not what the Coulter Obsorne Report (which led to the rules changes) spoke about, but I suppose privacy protection could be a side-effect of the new Ontario rules.

    Alex Cameron of Fasken’s and I are doing a webinar on litigation and privacy on February 9th. Here are the details.

    http://www.cba.org/cba/cle/online/ONFEB110.aspx

    Great topic with lots of meat to it. If anyone has any thoughts or opinions, please comment.

    Dan

  3. Kevin January 13, 2010 at 3:18 pm #

    It’s worth noting that there’s a false underlying presumption to the ruling, which is that an ISP has useful records to disclose which will show an individual’s Facebook use … or really, anything meaningful about an individual’s internet usage.

    A quick call to the ISP would probably have established that the Order is useless, because there are no such records to disclose.

    In my experience, there are widespread misunderstandings about the kinds of records that an ISP can and does keep. It would be useful if more counsel would bone up on the technical issues before getting into an application like this.

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