On February 4th, the New Brunswick Court of Queen’s Bench issued an ex parte order that required the plaintiff in a motor vehicle action to print and otherwise preserve the contents of her Facebook. Significantly, the order required the plaintiff’s own solicitor to appoint an agent to initiate and supervise the preservation process before speaking with his client.
The Court held that there was reason to believe the plaintiff had not produced evidence from her Facebook that would meet the “semblance of relevance” test for production. The plaintiff claimed that she could not travel by motor vehicle for more than one hour without discomfort, suffered headaches four to five days per week and could not carry groceries or any object that weighs more than five to ten pounds. However, the public part of her Facebook contained a number of pictures of her riding a “zip line” and there was (untested) evidence that these photographs were taken after the accident that gave rise to her claim. For example, the plaintiff publicly posted a photo in an album entitled “USVI 2010,” which contained a picture of her lying on a beach with “St. John USVI 2010” scrolled in the sand.
The Court did not apply the test for an Anton Piller order, but did question whether it was proper to grant ex parte relief. In resolving this question, it relied on the following evidence about the difficulty in determining whether Facebook data has been deleted.
Most importantly to the ex parte nature of the Motion, Mr. McNulty deposes that the creator of a Webpage on Facebook can add or delete to and from the site without leaving an electronic trail that can be followed by anyone seeking to data mine what may have been posted on that personal site over time and subsequently removed. Thus a forensic reconstruction of “dumped” data that might ordinarily be undertaken with respect to a computer hard drive is not an available option unless access to the relevant social network computers located elsewhere in the world was feasible and some data trail was able to be followed by an expert in the field of computer data retrieval or reconstruction at that site.
Notably, this evidence is about the consequences of deletion rather than the likelihood that the plaintiff would actually delete once put on notice. In fact, the Court judged the plaintiff’s disposition positively, suggesting she likely failed to produce the contents of her Facebook page out of mere ignorance.
The Court also recognized that an order requiring the plaintiff’s lawyer to help ensure the pages were properly preserved could do serious harm to the solicitor-client relationship, but felt that an ex parte preservation procedure was warranted and felt that it did not have the power to order a search by a neutral. As a kind of compromise, the Court ordered the plaintiff’s lawyer to appoint an agent to schedule a meeting with the plaintiff, advise her of the order, observe the printing and downloading of content and obtain and seal copies of the same for delivery to the plaintiff’s lawyer. The most troubling part of the order is that it bound the plaintiff’s lawyer to initiate this process without advising his client.