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June 2, 2010

Facebook in Litigation

Is the pendulum swinging back away from the use of Facebook in litigation?

In Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 4518 (S.C.J.), the defendants sought an ex parte Order for preservation of the plaintiff's Facebook account, followed by a motion for production.

Justice Price refused to make a preservation Order, holding that the defendant had not shown that it would suffer irreparable harm if the Order was not granted. Justice Price assumed that if the plaintiff's Facebook page contained relevant documents it would have been listed in her Affidavit of Documents. With respect, given the relatively recent development of Facebook, I would suggest that many counsel simply do not consider whether their clients have Facebook accounts, and, if so, whether there are relevant documents to be produced. Justice Price held that the mere nature of Facebook as a social networking platform is not evidence that it contains relevant information.

Facebook motions have become a useful tool for defence counsel in many cases and courts were supportive of them in several decisions; however, this decision could signal that courts are no longer as willing to make orders for production as they had been in the past.

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