Facebook Usage History Ordered Produced

Social media can be a useful investigative tool for defendants.  In an interesting twist, a Nova Scotia court has ordered the plaintiff's Facebook usage history produced.

In Conrod v. Caverley, 2014 NSSC 35 (S.C.), the plaintiff claimed she sustained injuries in a motor vehicle accident that compromised her ability to work and participate in recreational and social activities.  She complained of problems that limited the time she is able to spend using websites like Facebook.  The Nova Scotia Rules require "relevant" documents be produced.

Although Justice McDougall was not prepared to order production of the plaintiff's private portion of her Facebook account, he was satisfied the usage records were relevant and ordered they be produced:

[55]         I am satisfied that the Facebook usage data requested by the Defendants is relevant to whether Ms. Conrod's injuries have affected her ability to concentrate and the information should be produced.   The privacy interests implicated in this case are far less significant than in Laushway and Bishop where production of a party's entire hard drive was ordered so that evidence could be extracted by a third party.  The usage records sought by the Defendants can be easily obtained by Ms. Conrod and the contents will not reveal any potentially sensitive personal information about her internet activity such as websites she visits or private conversations she participates in on the internet.

Production of SIU Documents

When seeking production of documents from a non-party, it is important to remember that it is not sufficient to only show relevance; it must also be unfair to proceed to trial without the documents.

In Boucher (Litigation Guardian of) v. Charles, 2013 ONSC 3120 (S.C.J.), the plaintiffs brought a r. 30.10 motion to obtain documents from a non-party, the Special Investigations Unit (SIU).  The action arose out of an accident between a cyclist and a police motor vehicle.  The SIU conducted an investigation and concluded there were no grounds to lay criminal charges against the officer.

In a r. 30.10 motion for production of documents from a non-party, the moving party must satisfy a two-part test: 1) the document must be relevant to a material issue in the action and, 2) it would be unfair to proceed to trial without having discovery of the document.  The test sets a high bar and is permissive rather than mandatory (i.e. if it is met, the Court may order production).

The SIU conceded relevance of all of its documents except for statements from two civilian witnesses who did not witness the event.  Master McAfee held that the documents were relevant, but the plaintiffs were not able to meet the second part of the test.  The witnesses had not consented to release of their statements, and the statements of witnesses given to police officers had been produced in the police file.  Master McAfee also considered the public interest.  The efficacy of the SIU's investigative process and its ability to discharge its mandate depends on maintaining the confidence of witnesses. 

Master McAfee ordered production of a statement by a deceased witness as he would not be available to testify at trial or to provide consent to release the statement.  The plaintiffs were not able to show that they would be prejudiced by proceeding to trial without the remaining documents.

Litigation Privilege - Production of Lawyer's Notes of Interview

A recent case deals with production of statements taken by an opposing party.  It provides a summary of the principles relating to litigation privilege.

In Hart v. Canada (Attorney General), 2012 ONSC 6067 (S.C.J.), the plaintiff brought a motion seeking production of notes that had been made by counsel for the defendant several years earlier when the plaintiff was a potential witness in another lawsuit arising out of the same factual nexus.  The notes appeared to be an almost verbatim translation of the interview.  The defendant argued the notes were protected by litigation privilege.  The Master ordered the notes to be produced and the defendant appealed.

The appeal was dismissed.  Litigation privilege cannot restrict disclosure of an opposing party's statements.  Information or statements that are obtained from an opposing party cannot be confidential from that party.  To the extent a document is a mere recording of information given by the opposing party, it is not subject to litigation privilege, even though it was created with a view to anticipated future actions; however, if the document contains something more that amounts to a solicitor's work product, then it is privileged.  Counsel for the defendant would be permitted to make a proposal to redact certain parts of the document that contained information that was more than simply a record of the plaintiff's interview and statement, such as margin notes, underlining and highlighting.

It appears that the key fact was that the notes contained an almost verbatim recording of the plaintiff's interview.  If the notes contained the solicitor's strategies or theories, the outcome may have been different.

Cost of Productions

Who pays for the cost of producing documents?

In Veillette v. Piazza Family Trust, 2012 ONSC 4782 (S.C.J.), the plaintiffs brought a motion to compel the defendant to answer undertakings and refusals he gave on an examination in aid of execution.  The defendant took the position that the plaintiffs must pay any charges for obtaining the documents.

The Court cited two cases dealing with production of documents before trial, Ho v. O’Young-Lui, 2002 CanLII 6346 (ON SC), and Traverse v. Turnbull, [1996] N.S.J. No. 212 N.S.C.A. which held that the general rule is the party in possession or control of the documents is to produce them at their expense, although the court has residual discretion to depart from that rule where fairness and justice so require.  The general rule may be altered if its application would prevent a party from presenting its case.  Justice Kane held that there was no reason to depart from the general rule.

Although this case deals with an examination in aid of execution, disagreement over who pays for documents can often arise in the context of examination for discovery.  The Veillette case is useful in providing a succinct argument as to why plaintiffs should bear the cost of producing their documents.

Production of Statements Made Following an Accident

A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.

In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot.  The accident occurred at 8:55 p.m..  The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m.  At this point, she was aware that two people had been injured.  She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind.  The statement was delivered to the adjuster later that day.

On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.

Justice Hockin held that litigation privilege attached to the document.  The property manager knew there was an accident and that two people had been injured.  She believed that litigation would follow.  It did not matter that the defendant was not represented by counsel at the time.  The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case. 

Privilege was not waived.  Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4^th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.