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

268 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
McMillen v Hummingbird Speedway, Inc, 210 a Pennsylvania court rejected any
notion of privacy or confidentiality concluding that, since Facebook and
MySpace’s privacy policies indicate that a site operator might require
access to a person’s account, there was never a reasonable expectation of
privacy. In Romano v Steelcase, 211 a New York court ordered the plaintiff to
sign a consent form authorizing MySpace and Facebook to release
personal information from the plaintiff’s social networking account.
Conversely, in Canada, the judge in Ottenhof v Ross recognized that a
request for a password and intensive access to an account would likely be
“overly intrusive unless the party is claiming as part of his or her damages
claim a level of disability that inhibits his or her computer time.” 212
In some cases, courts have sought methods outside of the traditional
scope of discovery to verify disclosure. In Barnes v CUS Nashville LLC, 213
frustrated with the parties’ inability to determine relevant material
voluntarily, the judge offered to “friend” the plaintiff and review posts and
pictures. In Lodge v Fitzgibbon, 214 a New Brunswick court ordered the
plaintiff’s attorney in a medical malpractice suit to let the defendant’s
attorney view the plaintiff’s Facebook account at the plaintiff’s counsel’s
office to screen for potentially relevant material. Furthermore, some
American courts have taken a ‘hand-over-the-keys’ approach. They have
ordered one side to turn over passwords to their accounts or sign a
consent form authorizing a social network such as Facebook or MySpace
to provide as much information as possible. Usually this is a last resort
after it becomes apparent that a plaintiff may be exaggerating a claim or
injury.
Lastly, computer logs may be requested where the fundamental issue
in a case requires information on a party’s computer usage. In Bishop v
Minichiello, 215 the plaintiff claimed he was suffering from fatigue because of
rule allows discovery of material related to peripheral materials such as potential
witnesses.
210
McMillen v Hummingbird Speedway, Inc, No 113-2010 CD, (Pa CP Jefferson 2010)
online: .
211
Romano, supra note 193.
212
Ottenhof, supra note 167 at para 3.
213
Barnes v CUS Nashville, LLC, 2010 WL 2265668 (MD Tenn).
214
Lodge v Fitzgibbon, 2009 NBQB 332, 352 NBR (2d) 225.
215
Bishop, supra note 190.