In today’s day and age, social network sites have become more prevalent in society, so much so that it now plays a part in court decisions. In a recent motor vehicle accident decision in Sparks v. Dube,  N.B.J. No. 38, a New Brunswick court ordered the plaintiff’s lawyer to retain a non-party lawyer to secure potential evidence off of a social site that his client posted online. The decision also stipulated that this was to occur without informing the plaintiff lawyer’s client of the court’s decision.
While it is now a common practice to use evidence from hard drives or social sites, the way in which the court went about this order (of not allowing the plaintiff lawyer to inform the client of the current events) could have possibly harmed the lawyer-client relationship. Recently, Ontario courts have been ordering downloads of social media evidence off of a plaintiff’s computer; however, never under these conditions.
In this particular case, the defendant was aware of the material online and wanted to use it in court to defend against the claim for damages the plaintiff was making for the injury she sustained. When the decision was made, the judge believed that if both parties were present, it could increase the chances that the information would be removed. Despite the plaintiff lawyer’s request that the client be made aware of the court’s decision and the lawyer could be present as she downloaded the material from the site; this was rejected by the New Brunswick court. In the end, the insurance company settled the case, just following the court’s decision, so the online evidence was not used.
This example highlights the issue of privacy rights versus a client’s obligation to release any applicable documentation and evidence. If a decision were made in an Ontario court following an ex-parte motion, I could not see any way that a plaintiff’s lawyer could continue to represent his or her client, as I am of the opinion that our solicitor-client relationship is paramount to any court order which would indirectly breach that relationship with such a decision. The question is whether Ontario courts will be in any way swayed by New Brunswick’s court decision? As re-iterated in earlier writings, this is even more of a signal to lawyers of the importance to inform our clients that social media content is more likely than not to form part of the document disclosure in a civil litigation matter.