David J. Bilinsky is a Practice Management Consultant/Advisor for the Law Society of British Columbia. He is a Fellow of the College of Law Practice Management and past Editor-in-Chief of ABA’s Law Practice Magazine.
In the following post for Ontario Injury Lawyer Blog, David shares his perspectives on a recent decision for an order of preservation.
What Happens when an Order of Preservation is Imposed
When an order of preservation is imposed on a Facebook page, it means that the court will have access to all of the information contained within your profile. Pictures, your daily activities and your interactions will be subject to review. This leaves your private life open for discussion as it applies to your personal injury lawsuit. How much information has to be shared? How can it be used in a personal injury lawsuit? Guest blogger, Dave Bilinski, shares some interesting insights into the intricacies of preservation orders as they were issued in the Leduc v. Roman case.
Can you get an order of Preservation of the entirety of a party’s Facebook pages? Do the privacy settings on a person’s Facebook page affect discovery and/or privacy? Both of these issues were explored in the case of:
Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) — 2009-02-20
The first issue that was considered in this case was whether or not the privacy settings in a person’s Facebook profile affected the discover ability of what was posted on their Facebook pages.
Hiding Proof of Loss of Enjoyment of Life?
It is stated in that case:
“To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”
Private or Public, Your Profile can still be subject to Scrutiny in a Lawsuit
Furthermore, the decision states:
“ A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action.
Master Dash characterized the defendant’s request for content from Mr. Leduc’s private profile as “a fishing expedition”, and he was not prepared to grant production merely by proving the existence of the plaintiff’s Facebook page. With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.”
How Thoroughly a Preservation Order is Imposed Can Differ in Some Cases
Does that mean that everything on their Facebook pages would be produced? Typically a ‘preservation order’ is made that imposes a duty to preserve what is on the person’s Facebook pages. That doesn’t mean that everything will be produced; however, a party can expect to undergo a process to determine what is relevant on their Facebook postings relative to the issues in the litigation.
“ Master Dash adopted the first two steps: he ordered Mr. Leduc to preserve his Facebook postings and to deliver a supplementary affidavit of documents. However, he dismissed the defendant’s motion for production of all site materials as overly broad. While I share the Master’s concern about the breadth of the defendant’s request, I think the court should have permitted the defendant to cross-examine on the supplementary affidavit of documents to learn what relevant content, if any, was posted on Mr. Leduc’s Facebook profile.”
What duty does this place on counsel acting for a party in a litigation matter, particularly one involving personal injury?
That was answered in this case:
“Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.”
It is also entirely expected that a party will risk adverse consequences if they delete postings to their Facebook account once they realize that these are discoverable. Perhaps the safest course of action for a party to a personal injury action is to cease posting to any social media sites from the time of injury until the litigation is finalized.
Contact David J Bilinsky or visit his website: