Capture Evidence Early Where Open Source Information is Involved

Coauthored by Chloé Villeneuve-Reitano and Chris Pierre

In Isacov v Schwartzberg, 2018 ONSC 5933 (CanLII) the plaintiff sued the defendant for general damages in the amount of $1,000,000 and special damages in the amount of $2,000,000, after the defendant’s vehicle ran over the plaintiff’s right foot.

The defendant’s counsel produced a private investigator’s report late in the process which included  photos from the plaintiff’s friend’s Facebook and Instagram account, allegedly showing the plaintiff dancing and wearing high heels.

The defendant sought production of the plaintiff’s Facebook, Instagram and other social media accounts going back three years. As the motion with the investigator’s report was produced late in the proceeding, plaintiff’s counsel asserted that the Court should deny the defendant leave to bring the motion. It should be noted that the plaintiff neither confirmed nor denied the existence of the social media accounts sought. She also did not refer to the social media accounts on her affidavit of documents.

The Court admitted the evidence noting at Paragraph 41 “Taking into account all the circumstances of this case I am satisfied that an approach similar to that used for motions seeking defence medicals after the case has been set down, is appropriate. Defence medicals are not part of the formal discovery process. They are a separate process with specific considerations. Rule 48.04 therefore does not act as a bar to a request for a defence medical after the proceeding has been.  Here given the failure to include in her affidavit of documents to any reference to on-line data that the plaintiff has not asserted does not exist; I am satisfied that in this case it would be manifestly unjust to deny access to the sources sought. If they are nonexistent then there will be no content that could harm the plaintiff’s case. However if there is photographic evidence that may potentially undermine the Plaintiff’s claim, there will be an opportunity to provide an explanation at trial.”

The defendant’s motion was granted in part. They had requested that the plaintiff produce “… copies of all of her social media pages, including Facebook and Instagram, for 3 years pre-accident to present.” Due to the late hour of the request the Court only granted the motion in respect of the Facebook and Instagram accounts.

Further, in respect of costs the Court stated “The failure to seek such documentation until this stage of the proceeding, has added expenses to both sides that could have been avoided if appropriate questions were asked at the discovery of the plaintiff or prior to the mediation.

I feel as a consequence it would be appropriate to make no order as to costs on this motion.”

A social media review of the plaintiff’s accounts, including just identifying accounts is an important investigative process, particularly where the plaintiff failed to itemize them on their affidavit of documents. This decision shows how important it is to conduct this kind of research early in the process.

In a related note, in this case a friend’s account was reviewed, which appears appropriate in the circumstances of the case. Portions of that friend’s posts may have been redacted for privacy in the investigator’s report; however, it is essential to keep un-redacted originals of the evidence collected, even if they are partially redacted for privacy purposes in the report, in case they are ultimately required to be produced.