MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 267
oversight if they did not feel the disclosure was forthright or contained all
relevant material. 203 The judge found two possible ways to infer whether
hidden material may exist. First, the court could consider account specific
information such as public profile pictures and privacy settings. 204
Additionally, the court could:
infer from the social networking purpose of Facebook, and the applications it
offers to users such as the posting of photographs, that users intend to take
advantage of Facebook's applications to make personal information available to
others. 205
Not all claims result in the same inferences. In Schuster v Royal & Sun
Alliance, 206 the court declined a discovery request based on the mere
existence of a plaintiff’s Facebook account because no relevant material
existed on the publicly listed profile.
In both Canada and the US, courts have exercised their discretion in a
variety of ways. In some cases, the judge has sanctioned failure to disclose
relevant material by forcing unfettered production of an entire account. In
Bass v Miss Porter’s School, 207 a Connecticut court presided over a case in
which the plaintiff claimed intentional infliction of emotional distress
after being expelled from school. After the defendant complained that the
plaintiff was not disclosing all posts related to their emotional state of
mind following the expulsion, the judge undertook a sample comparison
between the plaintiff’s entire Facebook account and what information had
been disclosed. The court ordered the plaintiffs to hand over the entire
contents of their account to the defendants after finding their voluntary
disclosure to be insufficient. In Frangione v Vandongen, 208 an Ontario
master ordered a plaintiff who claimed he could only sit for 20 minutes at
a time to turn over private communications such as messages and chat
transcripts in addition to photographs and posts.
Some states have extremely broad disclosure rules that require almost
all material, even if only peripherally related to the case, be disclosed. 209 In
203
Ibid at para 13.
204
Ibid at para 21.
205
Ibid at para 31.
206
Schuster, supra note 169 at para 39.
207
Bass ex rel Bass v Miss Porter's School, 2009 WL 3724968 (D Conn).
208
Frangione, supra note 198.
209
See Pennsylvania, Pennsylvania Rules of Civil Procedure, Pa RCP No at r 4003.1. This