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

270 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
material or use preservation tools, both freely and commercially
available. 218 While some courts may admit screenshots or even printouts, it
is far more reliable to capture original sources or generate a time stamped
archive.
Furthermore, changes in technology may provide an alternative to the
“hand over the keys” approach when a court wishes to order full
production of information. In the fall of 2010, Facebook introduced a
feature that allows any user to archive and export their entire account into
a handy backup in which all photographs, posts, and messages are saved. 219
An order to export such an archive would in many cases be a more direct
and efficient approach than one requiring a party to hand over passwords
and account information to the court or opposing party.
E. Ex Parte Motions and Adverse Inferences
Courts are recognizing the challenge of preserving social networking
evidence, since accounts are easily closed and photographs or statuses
permanently deleted. As a result, they are beginning to grant motions
designed to preserve information or impose adverse consequences on
parties who appear to be deleting relevant information. For example, in
Terry v Mullowney, the court drew an adverse inference against a plaintiff in
a personal injury lawsuit after he shut down his Facebook account midlitigation,
concluding he had likely posted incriminating evidence
undermining his claim before deleting the account. 220
The trend moving forward in e-discovery may be the use of ex parte
motions prior to discovery. While parties have a general obligation to
218
There are a variety of ways that both social networking sites and the private sector
provide solutions to discovery requirements. For example, Facebook has an archive
function that allows a user to down load a copy of their entire profile. Companies
such as Hanzo Archives , have software capable of backing up Facebook, Twitter, Linked and
YouTube media. They also have useful tools for companies to integrate with
enterprise backup solutions for automating preservation of content. There are other
tools that exist for those looking to capture posts by other users. Some browsers, such
as Apple’s Safari, allow users to save a webpage as a template and similar add-ons are
available for Mozilla’s Firefox.
219
Craig Ball, “Facebook Feature Could Ease Cloud-Based EDD” (23 February 2011),
online: Law Technology News .
220
Terry v Mullowney, 2009 NLTD 56, 285 Nfld & PEIR 19.