An Ontario court has confirmed that the relevant content of a social networking site such as Facebook must be disclosed in litigation, and that a litigant has an obligation to preserve his Facebook page.

In Ottenhof v. Ross, Kingston Police Services Board et al., the plaintiff claimed $5 million in damages for personal injuries based on allegations that he had been assaulted by the police.  The issue of disclosure of his Facebook page arose on a refusals motion following the plaintiff’s examination for discovery.  On discovery, the plaintiff declined a request to produce a complete copy of his Facebook site, as well as a related request that he consent to an order for the preservation of the site.

Representatives of the defendants had conducted an Internet search and learned that the plaintiff maintained a Facebook account.  They argued that conversations, text exchanges, and photos posted online in and around the time of the alleged assault, and during an ensuing period when the plaintiff claimed to be recovering from his injuries, were relevant.  The plaintiff took the position that this request was too broad and overly intrusive.

Mr. Justice Ray determined that the defendants were entitled to cross-examine the plaintiff on his affidavit of documents in order to determine the extent of his Facebook account, its contents, and whether or not any portions were relevant.  In addition, the judge ordered the plaintiff to preserve his Facebook page “in the same way that any litigant is required to preserve potentially relevant documentation.”

Mr. Justice Ray cited a number of cases on the disclosure of social media, and summarized the principles as follows:

(1)   Pages from a social networking site or internet site, including a Facebook page, are documents that should be listed in a litigant’s affidavit of documents if they are relevant in the sense that they relate to a matter in issue in the action;

(2)   The fact that a Facebook account exists is not in itself sufficient to require its disclosure in the action;

(3)   Whether the Facebook or other social networking site is listed in the affidavit of documents or not, the opposing party has a right cross-examine on the affidavit of documents to determine if the internet site exists;

(4)   The scope of cross-examination on the affidavit of documents encompasses a determination of the relevance of the contents of the site;

(5)   Relevant portions of the site must be produced, subject to privilege;

(6)   In most cases, the party will not be called upon to disclose his password so as to enable opposing counsel to directly access the Facebook account; such access is overly intrusive unless the plaintiff is claiming a level of disability that inhibits his ability to use a computer.

Richard Hayles, B.A., J.D.

Link: CanLII – 2011 ONSC 1430 (CanLII)

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