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  • Social Media Evidence and Litigation (Part One)

    by CLBC Administrator | Jan 20, 2014

    Courthouse Libraries BC maintains a regular column in the Advocate and in the first issue of 2014 we promised to follow up on the issue of technological competence and lawyering. Is it, for instance, even possible to opt out of a reasonable understanding of social media? Consider this in light of how commonplace social networks have become, and in the specifics set out in the definition of "competent lawyer" in the Code of Professional Conduct for BC. 

    Here is part one in a series of tips for using social media responsibly in litigation. 

    Social media and law generally

    Quite apart from evidence in litigation, there are many intersections where social media and the justice system encounter one another—in the context of marketing legal services, solicitor-client relations, law firm management, and other potential ethical quagmires. As far as marketing activities go, the same rules extend to social networks as more formal media (the CBA has some good material on this), and the informal nature of the former can be at tension with the rectitudes of a profession rooted in tradition, not pop marketing. From a law firm management point of view, the Law Society of BC released a model social media policy a number of years back and firms are still grappling with what it means to be citizens of the social web. Then there are the debates over how judges, juries and court participants ought to use or avoid social media now that more than a few dimwitted tweets or status updates have caused humiliation and worse. Log into our Reading Room and check out Courts, Litigants and the Digital Age for some interesting reading on this topic. For the present purposes, we're not talking about any of the above.

    Social media evidence in litigation

    Social media evidence issues differ in one significant way from the examples above. It's not really about lawyers choosing social media; it's about the rest of the world having already done so and how we deal with it. Litigation counsel take their clients' problems in whatever condition they arrive, and a lawyer cannot choose to ignore factual matrix of a case. So in contrast to questions like "should my firm have a Facebook profile?", "should associates be subject to a social media policy?", or "should judges "friend" lawyers?", if there are parties from a file using social media, it's more a case of "do I have a sufficient plan for coping with social media evidence?" 

    This post presumes that most readers know common social media basics, like what Facebook is and how Twitter works. Failing during discovery to canvass aspects of a person's online life is no more excusable than neglecting to discover banking, medical, employment or family details of an individual. Lawyers who grapple with social media will face a few questions, such as: 

    • Do I understand how social media can be probative, or how it is received as evidence by the Courts?
    • Do I understand my professional ethics with respect to accessing social media and can I gather evidence without falling afoul of ethical duties?
    • Have I ensured that my client understands how his/her/its continued use of social media accounts might impact the case? 
    • Do I know how to collect and preserve social media evidence correctly?
    • Am I using the evidence correctly?
    This post will look at a couple of these questions, and continue in a future post with tips on the remainder. 

    How is social media a matter for evidence?

    The rise of social media in court cases is staggering. The authors of Throwing the (Face)Book at ’Em. The Use and Abuse of Social Media in Civil Litigation, published in the March 2011 of Advocates' Quarterly (the link is to an online copy) searched from June 12, 2007 to November 1, 2010 on Quicklaw and discovered over 230 cases that mentioned "Facebook". Less than two years hence, I extended that same search to today's date (January 17, 2014) and found over 1,300 cases on Quicklaw. For Twitter the picture is similar. From June 2007 to November 1, 2010 you could only pull nine  cases with "Twitter" in a Quicklaw search. As of today, I see 70.

    Employment, family law, personal injury and any claims where conduct and character are live issues can all become hotbeds for social media evidence. The Advocates' Quarterly article provides a handy discussion of how social media has become critical to litigation, although for the legal tests in BC one needs local sources. 

    David W. Hay's paper "Social Media: Photographic, Video, and Electronic Evidence", prepared for the 2012 CLE BC Personal Injury Conference, features a good review of Fric v. Gershman2012 BCSC 614, a case involving defence counsel's applications for rather broad access to a private Facebook account, including comments about photos. The defendant was partly successful, but by no means wholly, and the case supports the following conclusions, which Hay provides:

    1. Materiality and proportionality are alive and well (perhaps somewhat in contrast to some Ontario cases).
    2. An order against someone for disclosure is likely to require more than simply pleadings, i.e. discovery evidence can also be critical.
    3. The creation of social media account is not a general waiver of the right to privacy.
    4. The discovery of social media information won't necessarily entitle use at trial. 
    5. Photos speak for themselves and private commentary about photos is not likely to be compelled.

    Fric demonstrates the "clash between the plaintiff’s privacy rights and the probative value of the information sought" and addresses the parameters of social media production under Rule 7-1.

    Professional ethics and gathering social media evidence

    Browsing publicly available Facebook profiles is one thing. How far can a lawyer probe to get intelligence on another party? Resorting to false pretences is discouraged. Simon Chester, a bit of a maven when it comes to techno-ethical law topics, speaking at the 2013 Pacific Legal Technology Conference warned against "using social networking sites to obtain 'competitive intelligence' on a potential witness or opponent without revealing the lawyer’s true motive". 

    In BC, chapter 5.5 of the Code of Professional Conduct provides that "subject to the rules on communication with a represented party set out in rules 7.2-4 to 7.2-8, a lawyer may seek information from any potential witness, whether under subpoena or not, but the lawyer must disclose the lawyer’s interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way."

    At 5.1-2 the Code states, when "acting as an advocate, a lawyer must not [...] make suggestions to a witness recklessly or knowing them to be false." 

    The combination of the above raises doubts as to the tactics one might ethically resort to in order to gain access by "friending" people with social media accounts to gain access to information under privacy settings.

    How to advise the client

    The model Code of Professional Conduct says that a "competent lawyer" will go as far as the retainer demands "investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action." How far to coach a client may be a matter of nuance. The New York County Lawyers Association released an opinion directly on this issue, which is worth a glance. 

    Simon Chester, in a 2013 article in Canadian Family Law Quarterly, encourages lawyers to advise clients to reset passwords and ensure privacy preferences as a matter of routine. After that, it's better to "say nothing" through social media, since anything "will likely be read and assessed by an elderly male judge without a sense of humor."

    While posting marathon finish times on Facebook seems ludicrous when that same plaintiff aspires to establish bed-ridden victimhood, this type of thing happens a fair bit. Often the damage is done before the lawyer is involved, but it also happens where there is ignorance on the part of counsel about what clients are up to online. How one advises a client in these cases is a bit like how one coaches tightrope. Don't lean too far one way or the other. 

    Some advice is clearly merited, but spoliation should not be risked. In Terry v. Mullowney,  [2009] N.J. No. 86, the plaintiff scuppered his multi-million-dollar hopes when he attracted adverse inferences from the judge. The young man hastily shut down his public Facebook profile after various evidence of his partying, drinking and daily marijuana use didn't fly so well at a cross-examination. Justice Adams observed:

    [105] Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court. I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.

    Then there is the other extreme of Beattie v. Beattie, 2013 SKQB 127, which begged for some kind of woodshedding by its end, although some initial timely advice in the manner prescribed by Simon Chester could have been enough. Mrs. Beattie proved her own undoing by handing the other side all it needed to debunk her claim for spousal support based on need. The trier of fact could simply not accept Mrs. Beattie was among the working poor, at least not amid her incessant tweeting about Lexus convertibles, great philanthropy, symphony nights, esteemed somalliers, spa treatments, and such. Asking your client to simply vet their social media accounts to be sure that their version of the facts is, at the very least, not dramatically controverted by what's plainly depicted in their online life, is a good first step. 

    How to monitor your client's, or any other party's, continued use of social media is another tip to be discussed in the next installment when we discuss tips and information resources dealing with collecting, preserving and applying social media evidence. 

    In the meantime, if you have anything to add on this topic, please feel free to contact me on Twitter (@nrusse) or at nrussell@courthouselibrary.ca.

  • Robert Holmes QC: When "must" means may and "may" means must

    by User Not Found | Dec 13, 2013

    Getting legal advice on how a statute, regulation or contract is likely to be interpreted by a court is usually a sound idea on any significant business decision.  What may appear straightforward  is not always as non-lawyers would expect.  For example, in some cases, the word “may” is used.  Usually, that would set out the something was permissible, not that it was required.  But context and purpose govern and in some situations “may” can become “must”.  In an old case, Julius v. Oxford (Lord Bishop) (1880), 5 App. Cas. 214 at 222-23 (H.L.), Lord Cairns said:

    “But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.”

    So “may” can be “must”, if the circumstances require that interpretation. This context is likely to arise where an official is given a power to decide something when an application is made. A decision is required, even if the official is still left with the power to decide “yes” or “no” about what is being sought.

    Similarly, “must” may not always mean “must” and can end up meaning “may”. Common sense tells us that “must” means that someone is obliged to do something. But if they are simply incapable of doing so, are they still obliged to do it? And if the circumstances are different from what appears to have been contemplated originally, should “must” still apply? Fortunately, the law allows – at least sometimes – for there to be lawful excuses for non-performance and allows as well for explanations of how the context of one situation differs, making a supposed obligation inapplicable.

    With business corporations, the law sets out a number of “musts” that the corporation or its directors or shareholders have to do. But the statute is written for a vast array of different kinds of companies, from small to large, from profitable to not, from sophisticated to less so. As a result, it is key to look beyond the “musts” and into whether the law has provided for a consequence for failure to perform and any escape hatches that allow for “lawful excuses” for non-performance.

    The BC Business Corporations Act has a general enforcement provision in section 228(2), which reads as follows:

    (2) If a company or any director, … contravenes or is about to contravene a provision of this Act … a complainant may, … apply to the court for an order that the person who has contravened or is about to contravene the provision comply with or refrain from contravening the provision.

    Where the statute sets out a “must” for a corporation, director, officer or shareholder, and where there is an alleged “contravention” (i.e., a failure to perform what was required), the law allows some flexibility. It says in section 228(3) that “the court may make any order it considers appropriate, including an order (a) directing a person referred to in subsection (2) to comply with or to refrain from contravening a provision referred to in that subsection…”

    Courts tend to regard orders that someone “must” do something as being akin to injunctions. Injunctions are orders that require someone to do something or stop doing something. Mandatory injunctions are often seen as being more onerous. The simple reason is that telling someone to stop doing something that interferes with another’s rights is usually less intrusive an order than telling someone that he or she has to perform some act. A case has to be clearly made out to justify a mandatory injunction.

    In Allard v. Shaw Communications Inc., 2010 ABCA 316 at paras. 28-34, the court ruled that applications to enforce company legislation were equivalent to applications for mandatory injunctions and that the “may” language in the statute about the court’s powers made such orders discretionary. They were thus open to being refused in a proper case, even if the bare minimum requirements under the statutory “must” that someone had to do something were established. That case involved someone trying to get a list of shareholders where the company involved had reasonable suspicions that the list would not be used for proper purposes. The court refused to make the order that the list be provided.

    Along the way, the court said that an order could be withheld:

    • In the interests of justice or fairness 
    • Where there would be “no substantive useful benefit, except a negotiating advantage because of the harm done by the injunction to the person enjoined” 
    • Where the order would be “oppressive, harsh, illegal, or against public policy” 
    • Where the applicant for the order lacked “clean hands” (i.e., was acting unlawfully or inequitably), or 
    • Where the order would likely be used for or would further an “illegal purpose”.

    In Capital Regional District v. Smith (1998), 168 D.L.R. (4th) 52 (BCCA), the BC Court of Appeal refused to order that a house be torn down even though it had been built in violation of municipal building requirements.  A previous, similar building on the property had burnt down.  The owner re-built, but did so without complying with newly applicable building bylaws.  The district had not stopped work before the building was completed. The court thought ordering destruction would serve no useful purpose, particularly where what had been built was similar to what had been in place before the fire.  It refused the district’s application.  The court stressed that it would be a rare case where it would refuse a public authority an enforcement order about a public law.  But still, where such an order would be harsh and oppressive, the court decided it could refuse.

    Red Line Enterprises Ltd. v. Six Mile Pub Ltd. 2012 BCSC 628 is an example of a case where the court refused to order that a company provide audited financial statements as a historical matter, although it did make an order that for the future such statements were to be provided.  The court noted that the parties had conducted business so that it would be unfair going back and retroactively requiring strict compliance with the Business Corporations Act.  But for the future, where there appeared to be no lawful excuse or reason otherwise, compliance was required. 

    These cases show that even a statutory “must” can become a “may” where judicial discretion is exercised as to whether to issue an enforcement order.  Given the vast array of circumstances that can arise making an order more or less appropriate, and given that the consequences of violating a court order include the possibility of holding someone in contempt, it is sound policy and law for such discretion to exist.

  • Law of Evidence in the Digital Environment: UBC study calls seeks lawyers' insights

    by CLBC Administrator | Jul 25, 2013

    All the textbooks on electronic evidence and e-discovery appear to agree. Digital evidence is one of the great, if not the greatest, challenges facing civil litigation. 

    What action is needed to reform the laws of evidence to meet the demands of the digital era? A new research program through UBC's Faculty of Law and the School of Library, Archival and Information Studies has launched to help answer that question. And they are looking for lawyers to provide input.

    Metadata, spoliation, preservation and collection, chain of custody, records management, data imaging, admissibility, proportionality, data in the cloud, litigation privilege—and the dizzying list goes on—form a swarm of issues that complicate both the practice of law and business in the digital  environment. The need to contain these complexities has never been greater.

    It's one thing to say that electronic information now accounts for the majority of the evidence in many proceedings, but to come to grips with just how different the world is from only a decade or so ago, requires a better example. To borrow from Kenneth Cukier and Viktor Mayer-Schoenberger's recent article "The Rise of Big Data: How It's Changing the Way We Think About the World." Foreign Affairs 92.3 (2013): 28:

    In the third century BC, the Library of Alexandria was believed to house the sum of human knowledge. Today, there is enough information in the world to give every person alive 320 times as much of it as historians think was stored in Alexandria's entire collection—an estimated 1,200 exabytes' worth. If all this information were placed on CDs and they were stacked up, the CDs would form five separate piles that would all reach to the moon.
    This explosion of data is relatively new. As recently as the year 2000, only one-quarter of all the world's stored information was digital. The rest was preserved on paper, film, and other analog media. But because the amount of digital data expands so quickly-doubling around every three years-that situation was swiftly inverted. Today, less than two percent of all stored information is nondigital.

    Paper records once ruled Earth, but digital is the new mammal. And in the new digital environment, it's up to all lawyers to ensure that they, their clients, and the laws of evidence do not play the role of the dinosaur. The pitfalls of not knowing or neglecting digital evidence obligations can be ruinous. The authors of Electronic Evidence and E-Discovery point out that consequences include "sanctions for failing to properly preserve and disclose electronic information, including: monetary penalties, adverse inferences in the litigation, findings of contempt, or even judgment against the offending party."

    To this end, we should all take interest in UBC's research project on The Law of Evidence in the Digital Environment (LEDE). 

    LEDE is a 3-year collaboration between the Faculty of Law and the School of Library, Archival and Information Studies (SLAIS) at the University of British Columbia.. I spoke recently with Prof. Tony Sheppard who confirmed that the project would like to hear from more lawyer respondents. The window for taking the questionnaire has been extended until mid-August 2013.

    The link to the online questionnaire is http://fluidsurveys.com/s/law-of-evidence. It is a short survey, only 10-15 minutes to complete. Should you decide to participate you will benefit by gathering your thoughts in advance and considering not only what your experiences and challenges with digital evidence have been, but what your recommendations for its reform might consist of. The territory is huge, and the impact of the digital era on business and the practice of law cannot be measured easily. The more input this research receives, the better the odds that some refinements or even new strategies will emerge to help the courts and the legal profession. A vision of success is articulated by the LEDE project:

    "It will offer judges and lawyers a systematic framework for interpreting digital evidence, and develop new and enhanced curricula to educate legal and records professionals."

    To contact the researchers directly call Prof. Sheppard at 604-822-9865, or email him at sheppard@law.ubc.ca.

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