In an unusual judgment, a New Brunswick court has ordered a lawyer to have his client called to a secret meeting and forced to download her Facebook page so that it could be used against in her in a lawsuit, a ruling that some experts say has extended the reach of Canadian courts into social media sites.
In a ruling last month that cited the “worldwide growth in popularity of Facebook” and social media’s role in fuelling the uprisings sweeping the Middle East, Woodstock, N.B. Justice Fred Ferguson said he was concerned that Erica Sparks might delete some photos posted on her Facebook page that showed her navigating a strenuous treetop obstacle course and shopping on vacation. The photos were dated months after Ms. Sparks was in a December 2008 car crash that she claimed in a lawsuit had left her suffering frequent headaches, chronic pain and unable to ride in a vehicle or lift groceries.
The judge issued an order compelling Ms. Sparks’ lawyer, James Crocco, to secretly arrange to have a colleague call the woman to a surprise meeting without telling her why and then order to her download the entire contents of her Facebook site, including any photos and videos, so it could be examined in court.
Mr. Crocco told the CBC although the case was settled out of court, the ruling was an unprecedented step for a court that could threaten a lawyer’s ability to give legal advice to his client.
“It, in my view, amounts to almost a civil search warrant, but using one’s own lawyer to execute it, which as far as I know is unknown to Canadian law,” he said.
In his ruling, the judge admitted the order was “rare” but said it was essential to preserve important evidence in light of the growing role social media is playing in court proceedings in Canada.
“The phenomenal growth of some of these networks, in subscriber numbers, ensures that they will routinely be consulted in future by opposing parties in litigation and will become an integral part of the disclosure process,” he wrote, noting the “dearth of cases that have dealt with preservation orders of electronic data stored on social networks sites reported in Canada.”
Courts have increasingly ordered people to preserve important evidence on sites like Facebook, but this appears to be the first time a judge has ordered a plaintiff’s lawyer to surprise his client into handing it over to keep her from deleting it, said Michael Swindley, a Kingston, Ont. Insurance defense lawyer with Templeman Menninga who co-authored a paper last year on Facebook and litigation.
“That’s new,” he said. That’s definitely taking it one step further.”
The number of court cases involving sites like Facebook is “growing exponentially” in Canada since the first major court ruling in 2007, Mr. Swindley said. Sites like Facebook, which offer an intimate and sometimes exhaustively detailed look at someone’s day-to-day activities, have become indispensable for insurance companies looking to challenge an expensive injury claim. In many cases, scouring Facebook and YouTube is cheaper, easier and often turns up more incriminating evidence compared to traditional surveillance methods, Mr. Swindley said.
“People seem to want to put themselves out there, they want to be seen, so you’re going to get a lot more information on someone’s personal life than what you can get through surveillance,” he said.
“A private investigator could follow someone to a party at a friend’s house, but they don’t know what’s going on inside. With Facebook, it lets us get in.”
In the New Brunswick case, the defendant, Paul-Albert Dubé, hired a private investigator to scour the web and see if Ms. Sparks was on any other social network sites. The court rejected a request by Mr. Dubé’s lawyer to access Ms. Spark’s LinkedIn account because he found it wasn’t relevant to the case, along with a request to include any accounts they could find on YouTube, MySpace or Twitter because the judge said there was no evidence Ms. Sparks was a member of those sites.
Cases involving Facebook aren’t unique to young people, he said, online postings have been used against people in their 60s and 70s. Invariably, courts have accepted incriminating evidence found on Facebook in their judgements.
“Every reported case I’ve seen that deals with personal injury cases and deals with behaviour has somehow discredited or at the very least hurt a plaintiff’s claim,” Mr. Swindley said.
The issue has become a significant one for personal injury lawyers, who risk opening themselves up to malpractice lawsuits if they don’t think to warn their clients about the negative implications of posting incriminating information on Facebook, he said.
Canada has been at the forefront of court orders on access to Facebook and rulings here are watched closely by defense lawyers in the U.S. who are looking for new ways to access incriminating evidence, said Pamela Pengelley, a Toronto commercial litigation lawyer with Cozen O’Connor who runs an online cyberlaw blog, cyberinquirer.com.
”I’m going to be mailing a number of people in my firm about this saying: ‘Oh my gosh look at what a Canadian court has done’,” said Ms. Pengelley, whose law firm is headquartered in Philadelphia. “I think it’s going to have a lot of interest in the States. It’s a creative solution to the problem that lawyers face when they’re trying to get this information off sites like this, which is how to preserve it.”
Source: http://www.nationalpost.com/news/Judge+orders+secret+meeting+download+Facebook+account/4367804/story.html
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