Our first case this month deals with an ex parte Motion to compel a Plaintiff to download and preserve all of her personal data from social media websites.
Our second case deals with a Motion to conduct an examination for discovery under Rule 79.
Sparks v. Dubé, 2011 NBQB 40
This was an ex parte Motion, brought on behalf of the Defendant, to compel the downloading and preservation of the Plaintiff’s personal data from social media websites such as Facebook. The underlying action stemmed from a motor vehicle accident whereby the Plaintiff advanced a claim for general and special damages on the basis that the accident caused her injuries of such an enduring nature that she fell outside of the soft tissue injury damage cap.
The Defendant’s concern was that the data on such social networking sites is not stored on the Plaintiff’s hard drive. Therefore, if forewarned of the Order, she could delete the data from the websites, effectively making it irretrievable. If such an event did occur, the Defendant’s case would suffer irreparable harm.
The Motions Judge acknowledged that the requested Orders were intrusive to the Plaintiff’s individual privacy and harmful to her relationship with her counsel. However, those portions of the Plaintiff’s Facebook profile which were visible to the general public depicted her recently engaged in social and recreational activities which were potentially relevant to the Plaintiff’s claims of ongoing physical health issues, chronic pain, and a compromised lifestyle. The Motion Judge also noted that the Plaintiff’s Affidavit of Documents did not disclose the existence of her social network profiles or data, though this was attributed to ignorance of the relevance of this data rather than the deliberate withholding of evidence.
The Motions Judge held that based on the evidence presented, the Plaintiff’s Facebook data was highly relevant to an issue in the proceeding. However, the same could not be said of the Plaintiff’s data on other social media websites for which no evidence was adduced.
In granting the Order the Motions Judge limited the preservation Order and Interlocutory Injunction to the Plaintiff’s Facebook data only. Further, Plaintiff’s counsel could not be enlisted directly in the downloading process as this would damage the solicitor-client relationship and cause a potential conflict if counsel were to be called as a witness in the proceeding. Instead, Plaintiff’s counsel was ordered to engage another lawyer to stand in his place in the execution of the preservation and downloading Orders. Upon completion of the download, the hired lawyer was to certify the Plaintiff’s full compliance with all Court Orders and complete production of all data. The data would then be sealed by the Court and become the subject of a production hearing involving both parties.
Note: CBC New Brunswick reported in late February that Plaintiff’s counsel had filed an Appeal of the Motions Judge’s decision. However, the case reached a settlement days before the Plaintiff’s appeal was set to be heard by the Court of Appeal.