Legal Research

An Obligation to Discuss Facebook During Discovery

By Simon Chester

Hat tip to my young - and learned - friend John Salloum for alerting me to para 28 of Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) which suggests that there may be a new standard of care for Ontario lawyers emerging when advising their clients about litigation against an individual.

The issue in the story discussed by CTV arose in the context of a personal injury case where Facebook was specifically discussed during the discovery process, but the ruling by Justice David Brown of the Ontario Superior Court of Justice appears to go beyond the narrow context in the case before him.

According to Justice Brown:

“Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.”

Arguably, this could even be extended to include YouTube, Twitter, Flickr, MySpace, and assorted other sites frequented by the digerati if you had a tech-savvy litigant (or, we suppose, anyone under 25…).

On the other hand, doesn’t it take more than a single decision to shift the borders of required professional practice?

Full post as published by Slaw.ca on March 23, 2009 (boomark / email).