Wednesday, September 28, 2011

A Canadian Perspective on Social Media Discovery

In Sparks v. Dube, 2011 NBQB 40 (CanLII Feb. 4, 2011), a personal injury lawsuit tried to the Court of Queen’s Bench of New Brunswick, the defendant retained an investigator to find and review plaintiff’s personal websites.  The investigator discovered photographs on the public portions of plaintiff’s Facebook website that were potentially inconsistent with plaintiff’s claimed injuries.  Defendant requested an ex-parte order to compel plaintiff to download and preserve the contents of all social network sites.  The defendant further requested that the downloading be accomplished without prior notice to the plaintiff.  The court granted defendant’s request, and ordered plaintiff’s lawyer to set a meeting with plaintiff to accomplish the downloading, without informing plaintiff of the purpose of the meeting until plaintiff arrived.  The downloading was to be performed under the supervision of a second lawyer to certify that the order was strictly complied with.  The contents of the download were then sealed pending defendant’s motion for production of information with a “semblance of relevance.”

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