In a judicial manoeuvre you probably wouldn’t even expect to see on an episode of Judge Judy, a Canadian Judge, notorious for his penchant for seeking Facebook evidence, made an order which brings his conduct as a Judge into serious question.
A Canadian Judge set an alarmingly dangerous precedent in issuing an order tantamount to requiring a person’s own lawyer to search and execute a civil warrant upon them to turn over Facebook photos.
In doing, Justice Ferguson, put himself in a position of not only being a Judge, but also the Jury, Prosecutor and Defence, in addition to assuming the mantle of a CSI-style private investigator.
It begs the question, raised in an earlier post, as to whether Judges are going too far in their seemingly insatiable voyeuristic demand for Facebook photos and information residing on social networking sites.
In this case, it was the manner in which the Judge demanded access to the photos which was ethically and legally questionable, not to mention highly unorthodox. How would the average litigant feel if their lawyer started collecting evidence for the other side?
That is the practical impact of what would have happened in this case pursuant to Justice Ferguson’s Order. It isn’t surprising that the plaintiff’s lawyer, James Crocco, felt his client’s rights has been violated, as what occurred made a mockery of the foundation of our justice system. As a lawyer who acted on such an Order, Crocco could have been seen to be a co-conspirator working in a case against their client’s best interests. The case put him in a difficult predicament in reconciling his duties to the Court and his duties to his client. Rocco made the right choice and appealed Justice Ferguson’s Order.
Whilst Facebook photos are not private, the method employed in gaining access to the photos ordered by the Judge in the Canadian case indicates that these photos were not public photos. They did not have the status of being legally admitted ‘evidence’.
Pursuant to the Judge’s order, the Plaintiff Erica Starks, was required to log into her Facebook account by an independent lawyer, after a mystery impromptu meeting was arranged by the Judge between herself and the Lawyer. Starks had no knowledge of what the meeting was about, nor was she given the opportunity to seek legal advice as to what course of action to take from her own Lawyer.
The Plaintiff’s lawyer, James Crocco, appealed the judge’s order, leading to the Insurance company deciding to arrive at a settlement of the case. Sparks was spared from having to show any of her Facebook photos to the Court, other than a few photos the Judge had already seen.
A New Brunswick Court of Appeal was asked by Rocco to quash the Judge’s order on the basis that it threatened a person’s right to legal advice. The right to competent counsel in the US is ubiquitous and clearcut, and the situation is similar in Canada. It was outrageous of a Judge to put a Lawyer in this position.
There is a very serious problem with a judge trying to force a litigant’s lawyer to violate lawyer-client privilege and compromise their client’s case by undermining their client’s best interests.
Under the adversarial system of justice, the defence is supposed to make their case without help from the plaintiff and with minimal intervention from a Judge, who sits as an impartial umpire. The Judge’s actions were more representative of a Judge acting under the inquisitorial system of justice.
The presiding Judge’s actions indicated a high degree of judicial meddling and cast a cloud over his impartiality. The Judge is not supposed to descend into the judicial arena from an arbiter to being a witness or judicial investigator. It is the task of the parties to find and present the evidence in a case, not the judge under our adversarial system.
When Erica Sparks was injured in a car accident in 2008 and sued the other driver for damages, the defendant Insurance company who was a party to the action, wanted to see how severely she was injured.
The Judge justified his ruling by stating he was concerned Sparks may delete some photos if put on notice she was about to be ordered to hand them over.
He took the very unusual step of ordering her to attend a meeting with another Lawyer at which she was summonsed to log into her Facebook account and hand over the photos.
Regardless of how effective his action was or may have been, he stepped outside of his role as a neutral arbiter under our adversarial system, an umpire who is supposed to make findings based on evidence presented to him by both parties.
If the Judge had held a suspicion that the Plaintiff may tamper with evidence, he could have arranged for the service of Facebook with a warrant, as Facebook retains everything uploaded into an account. However this is not his function.
It would have been inappropriate for a Judge to initiate such action. It would be similar to a Judge arresting somebody. A Judge doesn’t have the power of arrest. The function of evidence gathering and deciding what evidence to present belongs to the parties to a case.
In taking the action he did, the Judge in effect not only violated lawyer-client privilege, but also denied Sparks the right to legal representation.
Whilst a lawyer’s first and paramount duty is to the Court, a lawyer’s second duty is to their client. However a lawyers duty to the Court is mostly a negative duty.
For example, a lawyer is prohibited from doing things such as suborning perjury and misleading the Court. A lawyer is not expected, other than under exceptional well-defined circumstances, to waive attorney-client a privilege which belongs to the client, not the Lawyer.
The case ended well for Sparks. Her claim that she was physically injured was finally vindicated, resulting in a settlement by the Insurance company.
In turn the Judge all the Judge got to see pictures of Sparks lying on the beach.
There are important questions which remain unanswered about the probity of the Judge’s actions. Some people may feel that the Judge’s tactics were justified. However the Judge was trying to seize evidence through the agency of a third party, which is completely contrary to our system of justice.
If we condoned this kind of action there may be situations in which Plaintiffs’ private photos, of no relevance to a case, are surveyed by a Judge in a way which parties find offensive and feel violated.
It is a truism that privacy is a private matter. Judges are not fully apprised of the facts of a case otherwise than through the parties advocates who present evidence to the Court. If they usurp their role, a Judge is in effect acting as an Advocate.
Prior to the Facebook age, we shared photos with people to whom we granted access, and on Facebook and other social networking sites we still do. The difference is that these interactions used to be untraceable.
Whilst some people don’t find the prospect of being seen semi-naked an intrusion on their privacy, they may not invite their political, ideological or other views, which are irrelevant to a case, being inspected by a Judge.
The fact that Judges have the convenience of internet access in their chambers may tempt some Judges to walk over and knock on the door of litigants’ houses, and gather the evidence they feel they need to make their decisions.
There are rules of evidence which exist to determine what is and what isn’t relevant and admissible in a court case. The parties advocates decide, using their forensic judgement, what evidence they choose to submit, whilst Judges decide what evidence should be admitted pursuant to rules of evidence. However if the Judge decides to do both, he or she is illegally mixing the two functions.
Judges shouldn’t be at liberty to decide on a whim that they wish to take a leisurely look through a litigant’s family photo album, all third parties who appear in it, and peruse any commentary including any views they may express about Conservative judicial appointments to the Canadian bench.
Judges, like all human beings have internal biases, and one can imagine a day when Plaintiffs or even Plaintiff Lawyers fear that views they post about all kinds of matters could taint a Judge’s views as to the merits of their case, even where they are totally irrelevant to the facts in issue. People have been known to post their political, religious and legal views online, including Lawyers their views about a Judge’s appointment, background, and legal decisions. However such views, if not material to a case, should not be seen or considered by a Judge deciding a case.
If the Judge is permitted to decide both the evidence which should be elicited and it’s admissibility, depending on the flavour of the information located by a Judge, one could imagine that a Judge’s opinion may be influenced by it.
Parties decide which evidence is beneficial to their clients’ cases, and it is for the advocates to decide how to roll the dice, not a Judge. We like to hold Judges on a pedestal, however can we or should we be expected to afford Judges the luxury of perusing all kinds of information which could colour their views about a party to a case before them?
How acceptable would it be for a Plaintiff to be privy to a judge’s online activity?
Sparks’ lawyer appealed the Judge’s ruling, on the grounds it was tantamount to the Judge the serving of a civil search warrant on his own client and then asking his lawyer to execute it.
The Judge’s ruling asked not just for public posts and information to be divulged, but may have included content that the plaintiff reasonably expected to be private conversations and touched on the privacy of third party rights.
The Judge was in effect knocking on the Plaintiff’s door and asking to be let into the Plaintiff’s house to gather evidence. By asking her to provide her password, he was asking her to give him the key to her house.
It is analogous to the Judge going up to her door, asking to be let in, taking a stroll through her house, and deciding what he believes to be evidence worth gathering.
Would it be legal for a Private Investigator, let alone a Judge to take an excursion through our houses, and examine everything we do in private within the confines of our home in a civil case?
What the Judge did in this case was make an order enabling the online equivalent of surveilling everything the litigant did ‘in public’ on Facebook, and further seeking access to possibly private aspects of her life and eavesdropping on her private conversations with third parties.
There could be all kinds of possible consequences from a privacy standpoint, however privacy aside, Judges aren’t permitted to undertake these searches.
Aside from the unforeseen consequences for privacy, if this type of behaviour is sanctioned, it represents an evolution from something which is purely an adversarial system to something which has very significant and unmistakeable inquisitorial elements to it.
If this is sanctioned, the temptation to do it being strong, this kind of practice could easily become entrenched and commonplace.
It gives Judges the convenience of undertaking investigations themselves. The temptation to undertake investigations is strong, but before the advent of the internet, was tempered by the practical inconvenience of doing so.
However as more and more things move online that dissuasion is lessened. This means we are therefore going to have to make sure that Judges properly understand their responsibilities and the proper parameters within which they are supposed to operate.
Preaching to people who don’t want their lives exposed to the world to merely refrain from posting material on Facebook seems like a simple and sensible solution to the dilemna of having parts of their lives they wish to conceal exposed in a trial.
However, despite the wisdom of that statement, in today’s world, it is akin to telling a person not to venture outside the privacy of their home, just in case they are surveilled or videotaped. A Judge in a civil case wouldn’t tolerate a wiretap being placed by a private investigator being admissible in evidence. Why should a Judge tolerate evidence being elicited illegally from a Web 2.0 internet property where there is a reasonable expectation of privacy?
We have entered a new age where internet evidence is being used by Judges to arrive at not only legal findings, but according to US lawyers, are actively perusing websites in their chambers to locate websites to assist them in arriving at factual findings on various issues.
If you have a photo album locked in your safe, it is functionally equivalent to having your photos protected by a lock on Flickr.
Insurance investigators may be able to photograph and surveill litigants outside the sanctity of a person’s home, but aren’t supposed to break into homes to seek evidence.
It would be just as extra-judical for a Judge to drive out in their car to a person’s house, ask them to open their safe and take out their photo album. Asking them to put their password into a computer is just as extra-judicial, but obviously it is more practical if a Judge requests a Plaintiff’s password and can travel to their destination in a number of seconds to find what they want.
In the past been dissuaded by the impracticality of conducting investigations, but with access to the internet, Judges now have access to information at their fingertips.
In order to access private information of litigants however Justice Ferguson needed the Plaintiff to hand over her password. There was a legal obstacle to the conduct which the Judge circumvented by simply ignoring his duty, and there was a practical obstacle, being the technological barrier of the Plaintiff’s password to her Facebook password.
An option is not to use computers or social networking sites, but this inconveniences those who wish to take advantage of their benefits, using appropriate safeguards.
Whilst some people would think that objecting to producing such data is suspect, a sign a litigant is ‘hiding something’, looking through a person’s Facebook account is akin to rifling through their underwear drawer or looking through the old family photo album at their baby pictures.
The Value of Social Media As Evidence
There have been an increasing number of cases requiring plaintiffs to produce social media content in personal injury, family and other lawsuits.
There is an inherent problem with the same person who is deciding whether evidence should be admissible actively seeking out evidence in a case which they are appointed to determine the outcome of. The parties advocates are the appropriate persons to decide upon the value of evidence being admitted. The Judge decides whether evidence put forth is admissible according to the rules of evidence.
In addition to checking out litigants Facebook accounts and other websites privately, it seems Judges are in fact being very pro-active in eliciting such evidence, and in doing so descending into the judicial arena, putting themselves at the risk of being perceived as witnesses and litigants.
Judge Ferguson is no stranger to making orders demanding personal injury litigants hand over records relating to their Facebook accounts. In 2009, Ferguson made a controversial order requiring a personal injury litigant to reveal how often she uses Facebook.
The Insurance company’s lawyers requested that the plaintiff turn over her internet records from her ISP, to disclose her Facebook activity. This motion was opposed by the Plaintiff who argued that it amounted to a violation of her privacy.
It doesn’t advance anything for a Judge to view information with little or no bearing on liability and which is potentially intrusive to a party’s privacy. This is precisely why the two functions of putting evidence before a court and evaluating it’s relevance for admissibility are intended to be kept separate.
Had the defendant Insurance company engaged an investigator and sought the admission of certain photos or data as part of their evidence in the case, which was then ruled as admissible by the Judge, this would have been completely appropriate and legitimate.
However the Insurance lawyer did not ask the court to subpoena Facebook activity of the Plaintiff in the conventional manner. If the Insurance company had have done so, Facebook may or may not have complied with that order. However neither litigant asked for the evidence to be submitted.
Furthermore, even where users delete their photos, Facebook keeps backups extending over several months along with logs of user activity which could be retrieved. It is up to the Insurance company to try to seek this information from Facebook if they wish to tender it into evidence, not for a Judge to try to extract evidence from a party without the benefit of legal representation.
We should also start to question the probative value and relevance to a Judge perusing undated photos is highly questionable.
Just as when people age or become disabled, they have a well established tendency to reminisce about the past. Pictures which bear testimony to their lives start to assume a greater importance than they formerly did.
We are all familiar with relatives who re-arrange their family photo albums. It isn’t uncommon for photos which are more flattering, show them in the prime of their life, doing activities that they are no longer able to do, or showcasing their achievements for their own benefit or the benefit of their children and grandchildren, to be given greater prominence.
Judges can easily gloss over this fact when looking at Facebook photo albums of people. In fact, on Facebook, people may be more likely to upload less realistic visions of themselves or of activities they say they indulge in, which they can no longer do because of their injuries.
In fact in many cases Facebook users believe users have a tendency to post photos of activities they never could do, in order to present a favourable online persona of themselves to a worldwide audience.
How reflective of one’s day to day’s life are Facebook photos? Do Judges consider this when looking suspiciously at photos to weed out potentially fraudulent personal injury claims?
Would a Judge realistically expect Facebook users to post pictures of themselves lying in bed at night in pain on their photo albums? If there were such photos we would probably not expect an Insurance company seek to submit such photos into evidence.
Whilst videos taken by Insurance investigators are able to better capture whether or not a person is capable of sitting in a chair for more than half an hour, a Facebook photo cannot reveal such information.
As more people become aware of the increasing tendency of Judges calling for and relying upon evidence from social networking sites, it isn’t inconceivable that litigants will start to present their Facebook pages in a manner which reflects an image which is most favourable to winning a case, rather than impressing their friends, families and potential suitors.
Unusual demands by Judges such as Justice Ferguson bring their impartially into question. A Judge under the adversarial system, isn’t a party in a case, except in their capacity as an umpire.
Furthremore, the relevance and usefulness of photos uploaded to Facebook in legal cases should be treated cautiously in all instances.
Judges may not be fully aware of the way in which Facebook and other social networking sites that spring up operate. Are Judges aware that litigants can post old pictures on Facebook, and that without date stamps, photos may be of dubious relevance to a fact in issue in a case?
Are Judges aware that old photos can be tagged, and photoshopped, hence the need for photos to become part of the sworn testimony of one of the parties, able to attest as to their authenticity and legitimacy.
The admissibility of evidence is supposed to be a two layer process. The parties to a case are supposed to make a forensic judgement regarding the evidence they present whilst the Judge is supposed to confine himself to deciding whether the evidence put forth by a party is legally admissible.
It is time for the legislature to introduce guidelines regarding access to social media and social networking information in civil and criminal proceedings.
There should also be clear judicial rules of conduct as to what kinds of evidence Judges should be permitted to investigate prior to parties putting such evidence on the court record.