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

Social Incrimination 271
preserve relevant documents once litigation has begun, an ex-parte motion
may pre-empt a party’s deletion of damaging information. 221 In Sparks v
Dubé, 222 the defendant became aware that the plaintiff had a Facebook
account. On the account were publicly accessible photographs of her
participating in a zip-line course, shopping, and relaxing on a beach,
appearing to contradict her claims that she was seriously injured. The
court noted that it was very simple and quick for a party to delete relevant
material once the plaintiff became aware of its potential impact on their
claim, and that this fear had played out in the past:
Weighing in favour of the hearing being held ex parte is the real and legitimate
concern that any data that might be deleted from her Profile in violation of a
Preservation Order made if both parties were present for this motion, would very
likely be impossible to resurrect after the fact. 223
The court attempted to set a balance between privacy and the need to
preserve evidence. The court allowed the ex parte motion to supervise
discovery of the Facebook account because public photographs posted
after the accident were relevant to determining the plaintiff’s injuries and
it was likely that more material was available in hidden areas. However, the
court denied the ex-parte order for access to the plaintiff’s YouTube,
Twitter and LinkedIn accounts, as there was no evidence they contained
relevant material.
In granting the motion, the court engaged in a multi-step process.
First, the moving party was required to show the social networking
account sought is under the other side’s control and the content passes a
“semblance of relevance” test. 224 Second, the court allowed the defendants
to deliver an order to the plaintiff’s attorneys requiring them to appoint
either another lawyer from their firm, or an independent agent to oversee
the process. Additionally, the court issued a temporary interlocutory
injunction restraining the plaintiff from deleting material. Next, the
plaintiff downloaded and preserved the material in the presence of the
third party, who would supervise the process, record the times and verify
221
Usually only granted in cases where advance notice might cause irreversible harm, in
an ex-parte motion one side requests a court order without alerting the other side.
222
Sparks, supra note 2.
223
Ibid at para 32.
224
Ibid at para 51.