Social Media Update

In the 2011 decision of Morabito v. DiLorenzo [2011] O.J. No. 5661, Justice Ramsay ruled that photographs taken before and after a motor vehicle accident and posted on a plaintiff’s Facebook and MySpace page were relevant to motor vehicle litigation. The judge indicated that photographs taken after the accident show the effect of the injuries and whether and to what extent they affect an individuals enjoyment of life while photographs taken before the accident are relevant for comparison purposes. Ramsay J. further stated that Facebook status updates and postings to other people’s walls do not necessarily meet the relevance test.

The case law in this area has evolved to the point where the contents of a Facebook page are treated just like any other (electronic) document. The early Orders that led to wider potential disclosure, and broad requests from defendants, have been replaced by Orders that are more measured and consider the issues as framed by the pleadings, the specific request made at examinations for discovery, the foundation for such requests, and the obligation of a party to prepare a comprehensive Affidavit of Documents. Counsel for plaintiffs need to take the time to review the contents of the client’s Facebook page to determine if there are relevant pages therein that ought to be disclosed in an Affidavit of Documents. Counsel for defendants need to lay the proper foundation at the examination for discovery in order to support the request for production of Facebook material, or the request for a further and better Affidavit of Documents. In order to avoid multiple motions and multiple examinations for discovery, counsel should turn their minds to these issues at an early stage, disclose those documents that are relevant, and be prepared to answer relevant questions during the examination for discovery process.

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