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Social Media Evidence and Litigation: When Your Case Goes Down… in the DM’s

The introduction of social networking sites over the last two decades has resulted in a fundamental shift in human interactions and relations. Social networking websites now allow users to upload information about themselves, share similar interests with other users, post pictures and videos, and maintain connections between friends and acquaintances.[1] As of 2012, Canada led the world in Facebook users per capita amongst countries with at least 10 million citizens.[2] As of 2016, 8.5 million Canadians used Instagram, and 14 million Canadians checked their Facebook “newsfeed” every single day.[3]

Surprisingly, social media web sites such as Facebook, Twitter, Instagram and LinkedIn are no longer being user dominated by today’s youth. In fact, a recent study by the Pew Research Center determined that 71% of online adults regularly used social media networking websites.[4] Although these advances in communication technologies have significantly enhanced efficiency and information sharing, they have also become a critical source of evidence in litigation. As a result, many litigators have discovered and developed ways that social media can be used to thrust their client’s and opposing party’s private lives under a microscope.[5]

Thanks to the growing popularity of various forms of social media, it is now easier than ever for lawyers to find damaging evidence online “in the form of status updates, late-night tweets and risqué photographs that call ones’ judgment into question.”[6] As a result, it should be no surprise that many lawyers covet information that is being posted on social media sites, as they attempt to establish the deleterious conduct of their opposition.

Disclosure Obligations

Although the law in Canada is quite clear that evidence obtained from social media sources is presumptively admissible if it is relevant, there are some critics who feel that this form of evidence is hearsay in its purest form.[7] Moreover, disagreements persist regarding the authenticity and admissibility of postings found in the “private” portion of a user’s profile. Members of the Canadian judiciary are still confronting the issue of how information, photos and personal details posted on an individuals’ social media profile should be applied to litigation.

Although there is no legal principle associated with the use of evidence found in social networks, pursuant to Rule 30.02 of the Rules of Civil Procedure[8] each party is required to disclose “every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party” and to produce such documents unless privilege is claimed.[9] This duty to disclose continues throughout the duration of an action, and where the court is satisfied by any evidence that a relevant document in a party’s possession may have been omitted from an affidavit of document the court may order: a cross examination on the affidavit, service of a further and better affidavit; disclosure or production of the document for inspection; or the inspection of the document to determine relevance.[10] It is important to note that pursuant to Rule 30.01 of the Rules of Civil Procedure the definition of a “document” is quite broad, and includes videotape, film, photographs, maps, plans, book of accounts as well as data and information in electronic form.

As such, over the past decade Canadian courts have considered these obligations in relation to information found on social media sites, as well as the obligations of parties, who use social media to post and exchange information. The majority of evidence stemming from social media is categorized as being documentary evidence in the eyes of the court. As a result, lawyers representing litigants attempting to introduce this form of evidence are tasked with satisfying the rules of best evidence, authentication and hearsay. They are also obliged to present social media evidence by way of a printout or screenshot and will likely use a live witness under oath who can testify as to what the record is, and how it is capable of supporting a particular finding.[11]

Admissibility and Inferring Relevance

Various courts in Canada have attempted to address whether evidence obtained through sites such as Facebook, Twitter, and LinkedIn should be admissible in court, and if they are, what capacity they should be viewed in.[12] A review of recent case law demonstrates the interplay between privacy rights and disclosure obligations in relation to conversations and comments made on social media. While it is true that some Canadian courts have adopted a more nuanced and restrictive approach to the admissibility of social media evidence, it appears that members of the Canadian judiciary are open to admitting social media as evidence if it is both relevant and material to the case at bar. Evidence of this was seen in the cases of Schuster v. Royal & Sun Alliance Insurance Co. of Canada [2009][13], Kent v. Laverdiere [2009][14] and Weber v. Dyck [2007][15] as members of the judiciary went on to establish that conversations which occurred on social media sites were admissible under the “state of mind” exception to hearsay and were subject to applicable disclosure obligations.[16] As such it appears that Canadian courts are willing to balance a litigants’ transparency interest with the reasonable privacy expectations held by users of social networking sites.[17]

Given the prevalence of these social media sites and the information regularly posted to them, social media has quickly become an invaluable tool for litigators. Litigators in particular are increasingly demanding that the content of social media accounts be produced on discovery, and when used appropriately and within the confines of the Rules of Civil Procedure as well as the Rules of Professional Conduct there is no doubt that social media can be a powerful investigative tool for counsel seeking to gather evidence.[18]

While the social media phenomenon has revolutionized the way humans interact, the law has been slow to catch up. By and large there are no “special” rules or procedures applicable to gathering social media before or during a lawsuit, nor are there special rules for using it at trial.[19] As such, it is vital for lawyers to remain conscious of the new and developing outlets for social media evidence, and to ethically collect that evidence.

As the use of social media sites continues to permeate through our society, the potential evidence available to litigators continues to increase. However, by properly applying the Rules of Civil Procedure, the Rules of Professional Conduct, as well as the Canadian Rules of Evidence, lawyers and the parties they represent should be able to benefit from the information contained in social media accounts for many years to come, both in respect to reaching reasonable settlements and as evidentiary tools at trial.[20]

[1] Patrick Marshall, “What You Say On Facebook May Be Used Against You In A Court Of Family Law: Analysis Of This New Form Of Electronic Evidence And Why It Should Be On Every Matrimonial Attorney’s Radar” (2012), online: Alabama Law Review

[2] Claire Hunter, “Litigation in the Facebook Age: Creative Discovery Through Cutting-Edge Internet Research on Parties and Witnesses” (2015), online: CLES of British Columbia

[3] Ibid.

[4] Jennifer Brandt, “Social Media Influences on the Practice of Family Law” (2015), online: American Journal of Family Law

[5] Omar Ha-Redeye, “Social Media: The Basics for the Family Law Practioner” Fleet Street Law (21 November 2013), online: Ontario Bar Association

[6] Ava Chisling, “When Facebook and Twitter are not your friends” CBC (2012), online: CBC

[7] Supra note 1.

[8] Rules of Civil Procedure, RRO 1990, Reg 194.

[9] Julia Anagnostakis, “The Proof is in the profile: Obtaining Disclosure of Plaintiffs’ Facebook Information” (2011), online: Blaney McMurtry

[10] Ibid.

[11] Paul Grimm, “Authentication of Social Media Evidence”, online: (2013) 36:433 American Journal of Trial Advocacy

[12] Ibid.

[13] Schuster v. Royal & SunAlliance Insurance Co. of Canada 2009 CarswellOnt 6586, [2009] O.J. No. 4518, 185 A.C.W.S. (3d) 1036, 78 C.C.L.I. (4th) 216, 83 C.P.C. (6th) 365

[14] (2009), 78 C.P.C. (6th) 182, (Ont. Sup. Ct. J.), Master Haberman

[15] 2007 CarswellOnt 3851 (Sup. Ct. J.), Master L.A.M. Pope (WLeC).

[16] Ronald Podolny, When Friends Become Adversaries: Litigation in the Age of Facebook, 33 Man. L.J. 391, 408 (2009)..

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Supra note 9.

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