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

272 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
that the entire material was saved. 225 Last, confident that a backup of the
material had been made, the court ordered the plaintiff to ensure all
photographs or potentially relevant material were disclosed on her list of
documents for future inspection. 226
Nevertheless, despite this decision, not all hearings may permit
discovery requests to uncover hidden content. While essentially all
jurisdictions have civil rules allowing discovery in litigation, some
provinces have statutory arbitration hearings to reduce litigation costs in
certain proceedings such as automobile claims. In Prete v State Farm Mutual
Automobile Co, 227 the Financial Services Commission of Ontario rejected a
request by an insurance company to force a claimant to disclose
information from his social network.
As well, the nature of social networking forums make the requirement to disclose
images on such forums procedurally burdensome in the context of an
administrative law tribunal. Active participants in these sites post and remove
images frequently. The images do not necessarily have the date upon which they
were created. It is not uncommon for adults to post their baby pictures. This
practice exemplifies the reality that an image may be posted on a date relevant to
the claim but was not created at a relevant time. It would be a procedural
quagmire to set guidelines for the preservation and production of these images in
a manner that would render them reliable evidence in a process that is required
to provide a speedy, accessible and fair process for dealing with disputes relating
to the Schedule. 228
F. Denial of Discovery Requests
Any attempt to request discovery of information from a social
networking profile should begin with a factual basis. The party requesting
the information should clearly explain how the evidence requested would
be relevant to the case. Requests for discovery of social networking
material may be denied if done at a late stage in a trial, or if a party cannot
demonstrate the relevance of the material sought. 229 While courts may be
open to inference, an ex-parte application requires “evidence of irreparable
harm must be clear and not speculative.” 230 American Courts have
225
Ibid at para 82.
226
Ibid at para 83.
227
Prete v State Farm Mutual Automobile Co, 2011 CarswellOnt 1019 (WL Can) (FSCO).
228
Ibid at para 17.
229
See e.g. Schuster, supra note 169.
230
Ibid at para 27.