I read with interest a story about a recent case in the US involving a personal injury claim. In short:
Campa Construction Corporation argued it should be granted access to Pedro Caraballo’s Facebook, Myspace and Twitter accounts, including to his deleted files.
The request was “overly broad” and not specific enough in what it was looking for, the court said.
Campa had argued that pictures, videos and posts on the sites were as important as medical records and that they could show Caraballo engaged in activities which would undermine claims about his injuries.Caraballo is suing Campa after a wall fell on top of him as he worked to connect sewer pipes in a trench.
The court indicated that “digital ‘fishing expeditions’ are no less objectionable than their analog antecedents” and therefore declined to grant the request.
It is interesting to compare the US case with a similar decision in Canada a few weeks ago, but with quite different results. In Sparks v. Dube, not only was the request granted, but granted ex parte for the following:
1) A Preservation Order and, in the alternative, an Interlocutory Injunction are hereby made and issued compelling Erica Sparks: 1) to preserve and maintain without deletions or alterations the entire contents of her personal web page(s) on the social network Facebook including but not limited to photographs, text, links, postings, event details and video clips until further direction of the court, and 2) to participate in the carrying out of the following orders where her participation is required;
2) The Interlocutory Injunction shall expire ten days after these orders take effect instituted;
3) The Applicant-Defendant shall personally and immediately serve all orders and a copy of this judgment upon the Plaintiff’s solicitor, Mr. James Crocco, who shall not disclose any of the orders set out herein nor the contents of this judgment except on terms as they are allowed by these orders;
4) Upon being served, Mr. James Crocco shall arrange for a solicitor in his firm or an agent lawyer of his choice to be appointed to carry out as soon as reasonably possible, and in the case of the Interlocutory Injunction within ten days of the taking effect of these orders, the orders set out that pertain to his client Erica Sparks subject to the following terms:
a) The appointed solicitor shall be remunerated by the Defendant for his or her services;
b) That solicitor shall immediately contact Ms. Sparks and, without disclosing the nature of the subject matter to be discussed, schedule a meeting with her at a location convenient to access and download data from the Internet and reduce it to usable form, such as hard copy for data so suited or memory stick or other such device for videos, as soon as reasonably practicable;
c) Upon personally meeting with Erica Sparks at the location chosen the appointed solicitor shall apprise her of the terms and conditions of the Preservation Order and Interlocutory Injunction as well as the other orders contained herein that pertain to her;
d) Immediately upon disclosure of the terms and conditions of the orders set out, Erica Sparks, in the presence of the solicitor engaged, shall create a permanent tangible records in hard copy, wherever possible, or to other suitable device, of the entire contents of her web page(s) on Facebook including, but not limited to, all photographs, text and links and shall record by a memory stick or other suitable device any videos posted or linked to Erica’s Sparks’ Webpage, one copy of which shall be sealed upon the carrying out of that part of these orders and delivered to Mr. James Crocco to be held and preserved by him until further direction of the court; but the delivering of a sealed copy of the entirety of her web page(s) shall not operate to preclude Erica Sparks from providing her counsel, Mr. James Crocco, or anyone else of her choosing with a copy of the entirety of her web page(s) in order to prepare for the Production Hearing or further proceedings;
5) Upon complying with the said orders the solicitor appointed to supervise the downloading of the material referred to herein shall immediately review all of the material downloaded to ensure that the orders have been carried out in full and shall then certify to the court in writing that there has been strict compliance with the orders contained herein, and that the sealed packet represents the entire contents of the Facebook web page(s) of Erica Sparks as well as videos posted or linked to it or them;
6) Upon the successful execution of the orders set out herein and the execution of the certification of strict compliance with the orders contained herein by the solicitor appointed to supervise the downloading of the material referred to herein Erica Sparks shall be free to resume unrestricted access to her web page(s) on Facebook including its substantive composition;
7) The Motion begun on December 9, 2010 shall be adjourned to a date to be fixed by the Clerk of the Court of Queen’s Bench for the Judicial District of Woodstock;
8) The Defendant shall then file with this court and serve on the Plaintiff, in timely fashion, a Notice of Motion for the production and disclosure of the contents of the sealed packet of information/data;
9) Once a date for a Production Hearing has been set Mr. James Crocco shall bring to that hearing the sealed packet of data retrieved from the Facebook web page(s) of Erica Sparks pursuant to the orders contained herein;
10) Upon completion of the execution of the orders contained herein, that apply to the retrieval of the entire contents of Erica Spark’s Facebook web page(s) on the terms as set out in these orders, the temporary oral sealing order sealing the entire file and court record in this matter that was imposed on December 9, 2010 at the conclusion of the ex parte hearing shall be lifted without further order of the court.
11) The Plaintiff shall upon execution of these orders and the holding of a Production Hearing, in timely fashion, file a further and better Affidavit of Documents.
Needless to say, quite a different outcome and much to the benefit of defendant, who was seeking evidence to disprove the plaintiff’s claims of damages for soft tissue injuries. Apparently, the case settled shortly after the information was downloaded.
Interesting how both cases involved similar situations, but resulted in quite different outcomes.