The Duty of Lawyers to "Investigate" Litigants Social Media Use
It is well established that social media postings and other electronic ‘records’ can be relevant in injury litigation. ¬†Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this and discussing litigant’s duties to canvass these documents in the course of litigation.
In ¬†last week’s case (Ahadi v. Valdez) the Plaintiff was injured in a 2005 collision. ¬†In the course of her trial an e-mail which was not previously disclosed was put to a witness. This led to a delay of the trial with further discovery taking place. ¬† Madam Justice Adair provided the following comments addressing this development:
¬†¬†¬†¬†¬†The defendants argue that Ms. Ahadi‚Äôs failure, prior to trial, to disclose all relevant electronic documents demonstrates a general lack of honesty on her part.¬† The problem relating to discovery of electronic documents was discovered on the third day of trial, when Mr. Marcoux showed e-mail communications to a witness (Ms. Betty Chow, Ms. Ahadi‚Äôs boss when she was working at Shoppers Drug Mart) that had not previously been disclosed to the defendants.¬† Mr. Marcoux acknowledged that he had received the e-mail communications from Ms. Ahadi shortly before the trial began. ¬†An order was then made concerning production of electronic documents, and Ms. Ahadi was required to submit to further oral examination for discovery.¬† This turn of events was very unfortunate, and made an already stressful experience (the trial) even more so.¬† It was also completely avoidable, if only appropriate inquiries had been made by Ms. Ahadi‚Äôs solicitors prior to trial concerning the existence and location of relevant and producible electronic documents.¬† Court had to be adjourned early on the third day of trial, after the issues concerning Ms. Ahadi‚Äôs electronic documents had been uncovered and during Ms. Ahadi‚Äôs examination-in-chief, because Ms. Ahadi felt unable to continue in the circumstances.
¬†¬†¬†¬†¬†The defendants argue that, because of the circumstances surrounding production by Ms. Ahadi of electronic documents and the conflicts in her evidence concerning the location of electronic documents in her home, I should give no weight to either Ms. Ahadi‚Äôs evidence at trial or her self-reports to the various experts.¬† The defendants say that anything less would be unjust to them.¬† They also argue that I should draw an adverse inference against Ms. Ahadi.
¬†¬†¬†¬†¬†I do not agree.¬†
¬†¬†¬†¬†¬†In my opinion, it does not follow from what happened concerning discovery by Ms. Ahadi of electronic documents that I should give no weight to her evidence generally.¬† Ms. Ahadi‚Äôs solicitors need to accept at least some of the responsibility for what occurred.¬† Prior to trial, they should have investigated the existence of relevant electronic documents much more thoroughly than they did.¬† Had they made a proper and thorough investigation, Ms. Ahadi‚Äôs solicitors could have avoided placing their client in the uncomfortable position in which she found herself on the third day of trial.¬† Defendants‚Äô counsel also had the opportunity to pursue the matter of electronic documents (such as Facebook postings and e-mail), when Ms. Ahadi was examined for discovery some nine months before the trial, but they did not.¬† In my view, Ms. Ahadi‚Äôs evidence should be assessed looking at all of the relevant factors.¬† The court can accept some, all or none of the evidence of a witness.