Controversial reasons for judgement were recently released by the The Court of Queen’s Bench of New Brunswick. The Court required a Plaintiff in a personal injury lawsuit to preserve all contents on her Facebook homepage and have these produced. While requiring Social Medial Data production is not necessarily unique, the way the Court required this evidence to be preserved will cause concern for many.
In the recent case (Sparks v. Dube) the Plaintiff was injured in a motor vehicle collision in Fredericton in 2008. She hired a lawyer and sued for damages. In the course of the lawsuit the defence lawyer brought a motion, without notifying the plaintiff’s lawyer, requesting personal information from the Plaintiff’s Facebook account. The Court granted the motion and made the following contraversial orders:
1) A Preservation Order and, in the alternative, an Interlocutory Injunction are hereby made and issued compelling Erica Sparks: 1) to preserve and maintain without deletions or alterations the entire contents of her personal Webpage(s) on the social network Facebook including but not limited to photographs, text, links, postings, event details and video clips until further direction of the court, and 2) to participate in the carrying out of the following orders where her participation is required;
2) The Interlocutory Injunction shall expire ten days after these orders take effect instituted;
3) The Applicant-Defendant shall personally and immediately serve all orders and a copy of this judgment upon the Plaintiff’s solicitor, Mr. James Crocco who shall not disclose any of the orders set out herein nor the contents of this judgment except on terms as they are allowed by these orders;
4) Upon being served, Mr. James Crocco shall arrange for a solicitor in his firm or an agent lawyer of his choice to be appointed to carry out as soon as reasonably possible, and in the case of the Interlocutory Injunction within ten days of the taking effect of these orders, the orders set out that pertain to his client Erica Sparks subject to the following terms:
a) The appointed solicitor shall be remunerated by the Defendant for his or her services;
b) That solicitor shall immediately contact Ms. Sparks and, without disclosing the nature of the subject matter to be discussed, schedule a meeting with her at a location convenient to access and download data from the Internet and reduce it to usable form, such as hard copy for data so suited or memory stick or other such device for videos, as soon as reasonably practicable;
c) Upon personally meeting with Erica Sparks at the location chosen the appointed solicitor shall apprise her of the terms and conditions of the Preservation Order and Interlocutory Injunction as well as the other orders contained herein that pertain to her;
d) Immediately upon disclosure of the terms and conditions of the orders set out, Erica Sparks, in the presence of the solicitor engaged, shall create a permanent tangible records in hard copy, wherever possible, or to other suitable device, of the entire contents of her Webpage(s) on Facebook including, but not limited to, all photographs, text and links and shall record by a memory stick or other suitable device any videos posted or linked to Erica’s Sparks’ Webpage, one copy of which shall be sealed upon the carrying out of that part of these orders and delivered to Mr. James Crocco to be held and preserved by him until further direction of the court; but the delivering of a sealed copy of the entirety of her Webpage(s) shall not operate to preclude Erica Sparks from providing her counsel, Mr. James Crocco, or anyone else of her choosing with a copy of the entirety of her Webpage(s) in order to prepare for the Production Hearing or further proceedings;
5) Upon complying with the said orders the solicitor appointed to supervise the downloading of the material referred to herein shall immediately review all of the material downloaded to ensure that the orders have been carried out in full and shall then certify to the court in writing that there has been strict compliance with the orders contained herein, and that the sealed packet represents the entire contents of the Facebook Webpage(s) of Erica Sparks as well as videos posted or linked to it or them;
6) Upon the successful execution of the orders set out herein and the execution of the certification of strict compliance with the orders contained herein by the solicitor appointed to supervise the downloading of the material referred to herein Erica Sparks shall be free to resume unrestricted access to her Webpage(s) on Facebook including its substantive composition;
7) The Motion begun on December 9, 2011 shall be adjourned to a date to be fixed by the Clerk of the Court of Queen’s Bench for the Judicial District of Woodstock;
8) The Defendant shall then file with this court and serve on the Plaintiff, in timely fashion, a Notice of Motion for the production and disclosure of the contents of the sealed packet of information/data;
9) Once a date for a Production Hearing has been set Mr. James Crocco shall bring to that hearing the sealed packet of data retrieved from the Facebook Webpage(s) of Erica Sparks pursuant to the orders contained herein;
10) Upon completion of the execution of the orders contained herein, that apply to the retrieval of the entire contents of Erica Spark’s Facebook Webpage(s) on the terms as set out in these orders, the temporary oral sealing order sealing the entire file and court record in this matter that was imposed on December 9, 2010 at the conclusion of the ex partehearing shall be lifted without further order of the court.
11) The Plaintiff shall upon execution of these orders and the holding of a Production Hearing, in timely fashion, file a further and better Affidavit of Documents;
I understand that this order is being appealed and look forward to the New Brunswick Court of Appeal’s views on this matter. While there are cases requiring Plaintiffs to produce social media data in personal injury lawsuits in BC, I am not aware of any cases in this Province going as far as the above decision. Arguably the New BC Rules of Court focus on proportionality, narrower document disclosure obligations, and general prohibition of “fishing expeditions” in discovery of documents would prevent such an order from being granted in BC.