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28 Feb 2014

Balancing Relevance and Privacy: The Great Facebook Debate

by Admin
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Conrod v Caverley, 2014 NSSC 35

Requests for the production of Facebook and other social media information are gaining prevalence in both oral and documentary Discovery. In this case, the Nova Scotia Supreme Court considered an application by the Defendants to compel the Plaintiff to produce her personal Facebook profile. The action arose out of a motor vehicle accident. The Plaintiff claimed that in addition to affecting her ability to maintain employment, the injuries she sustained in the accident also compromised her ability to participate in recreational and social activities.

If the Public Profile is Relevant, then so is the Private Profile

The Court affirmed that in cases where a person maintains a Facebook profile with both public and private portions, the court is entitled to infer that the contents of the private portion will be similar to the contents of the public portion. Thus, if there are relevant photos and information accessible on the public portion of the profile, then the private profile will be deemed to also hold relevant evidence.

The relevancy of the contents of a Facebook profile is determined by the claims being advanced by its owner. If the evidence seen in the public profile is consistent with discovery testimony or other evidence, then it is likely that access to the private profile will be denied. However, if the public photos present evidence which is inconsistent with the Plaintiff’s discovery testimony, then the public profile may be fair play.

The photos presented by Defence counsel in the present case were small, black-and-white thumbnail photos, several of which it turned out did not include the Plaintiff at all. The Court concluded that the Plaintiff’s public profile did not contain any relevant photos or posts, and ultimately dismissed the application to have her private Facebook profile produced.

Facebook Usage Data

The Defendants also requested an Order compelling the Plaintiff to provide her Facebook log-in/log-out usage history, which could easily be downloaded and printed by the Plaintiff herself.  The Plaintiff’s job prior to the accident was administrative, and the Defendants argued the Facebook usage data would provide evidence pertaining to her ability to concentrate for periods of time on a computer. The Court deemed these records relevant and ordered their production.

Read the full case here.