October 6, 2021
The plaintiff in this case was evasive about his social media presence on Facebook. The defendant initiated a motion for sanctions for “alleged spoliation of electronically stored evidence, specifically his social media accounts.” The court denied the spoliation motion ruling based on the lack of evidence that the Facebook information had been “irretrievably lost.” Instead of sanctions, the court directed the production of the Facebook accounts as an alternative remedy.
Brown raised an issue as to what constitutes destruction of the evidence in the context of social media evidence. Is a de-activated social media account lost forever?
As a comparison, the test for spoliation in Ontario as outlined in Nova Growth Corp. et al v. Andrzej Roman Kepinski et al, 2014 ONSC 2763 is stated as “[requiring] four elements to be established on a balance of probabilities, namely:
- the missing evidence must be relevant;
- the missing evidence must have been destroyed intentionally;
- at the time of destruction, litigation must have been ongoing or contemplated; and
- it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.
The test for spoliation in Ontario requires that the evidence be destroyed. In a case where an individual deactivates rather than deletes their social media evidence – this should not lead to a finding of spoliation as the evidence simply has not been destroyed as required by the test in Nova Growth. In situations where the social media evidence can be retrieved without any loss of relevant data, this allows counsel seeking that evidence to request its production after that social media profile has been re-activated. The implication is that the social media evidence was never destroyed; rather it was potentially withheld behind the technical barrier of social media deactivation.
This approach was confirmed in Nemchin v. Green, 2017 ONSC 1403, where the defendant’s counsel discovered a deactivated Facebook page, and requested that the social media accounts be “instated and preserved immediately.” The Facebook page was subsequently re-activated for a period of time to allow the defendant’s counsel to review the data and preserve it onto a CD disc. This case emphasizes the importance of counsel understanding that electronically stored evidence includes a person’s or entity’s social media presence. It is also important for counsel to consider that social media evidence can be recovered where parties have deactivated their social media presence as demonstrated in Nemchin. However, the technical capabilities of each social media platform to preserve that evidence may vary. Therefore, it is important for counsel to conduct an early identification of potential social media evidence to protect the integrity of that evidence in the discovery process.
Harry Chang is an Associate at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence. Heuristica has considerable experience in investigations and disputes and recently became the first law firm in the world to be awarded RelativityOne Silver Partner status.