If you were a Plaintiff in a personal injury case, you might be suspicious if Defence Counsel suddenly wanted to be your friend, especially a Facebook friend.
After all Defence Counsel is working for the other side.
Defence Counsel then claims that their Facebook friend request is a ‘neutral’ one, but when you refuse to accept their neutral request they suddenly try to force you to be their Facebook friend.
Why? They want you to hand over your Facebook password. They refer to previous case law where a court has forced a plaintiff to turn over their Facebook login information. ( McMillan v Hummingbird Speedway Inc.)
This was what happened to Ms Piccolo, a plaintiff in a personal injuries action in the case of Piccolo v. Paterson. Her lawyer’s response in refusing to comply with the defendant’s motion was a reasonable one.
The Plaintiff Ms Piccolo, who had sustained facial lacerations in the car accident which was the subject of the case before the court, couldn’t face the humiliation, indignity and embarrassment of having photos of her face and any content about it viewed yet again. It would have been oppressive and the burden of acceding to the request outweighed the relevance of the photos which appeared there to her case.
After all, the Plaintiff had already co-operated fully with the Defendant Insurer who had come to her house in 2008 and asked to take 20 photos of her face the week after the accident, and two years later allowed more pictures to be taken for a 2010 deposition.
The defendant hadn’t mounted any kind of argument that the Plaintiff was hiding anything or that the Facebook photos were any different to the photos taken of her by the Defendant. Fortunately the Judge agreed with the Plaintiffs’ objection although did not set out his reasoning in his judgement.
As discussed previously Judges seem to be overstepping in their zeal for seeing social media evidence.
This case shows, as previously discussed, that Lawyers and courts may be getting carried away with social media evidence, as there was no rationale offered in support of the defendant’s request for the motion to compel access to the Facebook profile.
The defence didn’t suggest the profile was material to the case. All that the request wuold therefore achieve would allow her personal information to be laundered through a defence lawyer.
There was some contention as to whether the Plaintiff’s Facebook profile was public, but in any event the defendant didn’t argue the photos were material to the case.
Acceding to such a request would furnish a litigant with both relevant and irrelevant information, in addition to information which could be private and sensitive in it’s nature. Not only could it violate a litigant’s privacy, but allow a defendant to go on a fishing expedition for evidence they might discover to discredit the plaintiff.
Courts shoud have serious misgivings about ordering a plaintiff to hand over their passwords to all of the information in their profile without even establishing a relevance threshold.
Judges and lawyers seem to want to view such information but even the Stored Communications Act arguably curtails a networks’ ability to disclose private communications, which may or may not include ‘public’ wall posts. This makes it difficult for a network to respond to a subpoena presented to them seeking discovery.
The alternative course of action for a litigant is to obtain the information directly from the other party, however there are practical problems with that approach.
If a party seeks discovery of information they need to know enough about the evidence they are seeking to formulate their requests in a way that sets out the material they seek and it’s relevancy to a given dispute.
In the McMillan case a defendant’s motion requesting the Plaintiff’s MySpace and Facebook logins was granted by a Court. The Court seemed unable to discriminate between relevant and irrelevant parts of a profile, or even discern the difference between the public nature of wall posts and the private nature of email communications between parties. Email communications are protected under the Stored Communications Act.
Handing over login and password information is analogous to asking a plaintiff to give a Judge or Defence Attorney a key to their house.
A court is supposed to assess whether information is privileged and protected from disclosure, but there is no social network privilege. However, the issue of privilege aside, Courts first need to engage in a relevance anaysis of information which may be located on these sites before considering it’s disclosure.
Under rules of evidence, there are certain categories of privilege with different rules applicable depending on the category of privilege evidence belongs to eg Attorney-Client privilege, Priest-Penitent Privilege, Doctor-Patient Privilege being some examples. The Court applied the ‘Wigmore test’ to determine whether the information would be subject to privilege, however completely misunderstood the confidentiality of the communications involved.
The Court concluded from reading the Facebook terms of service, that users would know they had no reasonable expectation of confidentiality in respect of anything posted to the sites.
In addition to misunderstanding the terms of service, the court expressed an odd perception about the expectation of confidentiality being unrealistic on a website that was ‘social’ in it’s character.
The Court’s ruling was contrary to precedent which recognised that private messages transmitted via social networking sites are protected from disclosure pursuant to the Stored Communications Act.
The court’s reasoning in McMillan shows some Judges lack an ability to discern the difference between the public nature of wall posts and private email exchanges which occur on these sites.