Disclosure and preservation of digital information has been the subject of a number of recent decisions in British Columbia and Ontario, as lawyers are increasingly looking to evidence in digital photographs, Facebook profiles and Twitter accounts to advance their clients’ cases.
Digital information can be particularly important in personal injury cases. In the recent British Columbia case of Abougoush v. Sauve, 2011 BCSC 885, Mr. Justice Rodgers ordered the plaintiff, who was advancing a claim for physical injuries arising out of a car accident, to disclose to the defendant the photographs of her recent vacations, including metadata (i.e. the embedded data in a digital file that may include information on who authored a document, when it was created, the software used, etc.), as “the metadata may be relevant to the plaintiff’s ability to, for example, be active throughout a given day and then go walking on the beach in the evening, or it may be relevant to the plaintiff’s ability to spend an evening at a nightclub until some given hour, and then tolerate swimming the next morning” (at paragraph 11).
There are similar decisions regarding Facebook content arising out of Ontario, British Columbia and New Brunswick. Given the ubiquity of social media sites such as Facebook (with over 750 million active users), voluminous hard drives and cheap digital cameras lawyers should be aware of some of the tools that can be used to search and preserve digital information.
Some of the tools I make use of in my practice, which includes online defamation and personal injury, are set out below:
Searching for Public Online Information
Facebook
Over the past four years there have been a number of cases in which Canadian courts have ordered disclosure of the contents of Facebook pages in the context of personal injury actions, family actions and claims in defamation. Particularly in complex personal injury claims, the existence and contents of a social media account will often go directly to the nature and extent of the plaintiff’s damages.
Some users will set their Facebook accounts to “private”, which can make it difficult to ascertain whether the user is actively posting information. However, despite high privacy settings, users may unwittingly post information to public pages, such as pages or products. There are a number of search tools, such as OpenBook and GabberFace, which can be used to search for all publicly available Facebook information in which a certain term appears, including specific names or phrases.
Twitter
With nearly 100 million active users and over 140 million tweets sent a day, Twitter is a potential goldmine for personal information that could be relevant to an ongoing lawsuit. Many lawyers may not be aware that the standard search function offered by Twitter only allows users to search the previous 10 days of Tweets. Although the United States Library of Congress is in the process of digitally archiving every public Tweet since Twitter’s beginnings in 2006, it has not yet provided a search function to allow users to explore this content.
Despite this, there are websites that allow users to search material further back in Twitter’s history. A number of sites such as Snapbird and Monitter provide search functionality beyond the standard 10 days offered by Twitter itself.
Preserving Online Information
Once relevant information has been located, it is important to preserve this information so that it can be used as evidence at a later date. In my practice, which includes a significant online defamation component, I make use of a freeware program called WinHTTrack. This program allows a user to download an entire website, including links and sub-domains.
The website can then be saved on a hard drive or disk, and can be opened exactly as it looked at a point in time. Although the interface is somewhat technical, the program provides a number of options for preserving images, flash content and linked content.
Obtaining Non-Public Information by Way of Court Order
Litigants
Under the Supreme Court Civil Rules, courts have held that electronic documents, including metadata, are documents for the purposes of disclosure. Accordingly, parties have the same obligation to list and produce digital data that relates to a matter at issue as they do to list physical documents. In the event disclosure is not forthcoming, a litigant can bring an application compelling disclosure pursuant to Rule 7-1(11), (12), (13) and Rule 7-1(14).
Third Parties
In online defamation actions it is common that the correct defendant will initially be unknown, as the author of the defamatory publication may have made use of an anonymous email account or created a defamatory webpage under a pseudonym.
For information in the possession of third parties, there is a form of application known as a “Norwich Pharmacal” application, which can be brought by way of petition to obtain a court order compelling internet service providers, website domain hosts or email providers to disclose any identifying information about the anonymous defendant in their possession.
Similar applications for relevant electronic information in the possession of third parties can be brought in existing actions pursuant to Rule 7-1(18) of the Supreme Court Civil Rules.
Model Anton Pillar Order re: Electronic Documents
Finally, it is possible to obtain an Anton Pillar Order in respect of digital information, including social media accounts and physical devices. A difficult order to obtain, this order can be used to seize a hard drive, digital camera or cell phone, which can then be examined forensically. There is a model “Anton Pillar Order” which was recently brought into effect in British Columbia by way of practice directive. Any lawyer seeking an Anton Pillar order must make use of this model, and any departure from its standard terms must be explained to the court.