Canadian court orders litigant to request her Facebook records from ISP

Toronto attorney Dan Michaluk blogs:

On December 2nd, the New Brunswick Court of Queen’s bench ordered a plaintiff in a disability insurance claim to obtain “a history of her computer account use” from her ISP and “request” her ISP to generate a record accounting for her FaceBook use.

The case is Carter v. Connors, 2009 NBQB 317 (pdf), and from the court filing, the background is:

The Applicant-Defendant has brought a motion for an order that the Plaintiff, who is currently undergoing discovery examination by the Applicant’s counsel, provide an undertaking to have her Internet Service Provider, Bell-Aliant, disclose the history of her Internet use at her home from the date of a motor vehicle accident in 2004 until today. Included in that request is a specific ancillary request that, in the event the motion succeeds, the technician that assembles the Internet use record segregate as a discrete record, if possible, the time spent on the Internet social network site Facebook that may be disclosed in the Plaintiff’s Internet use account record. The Plaintiff has conceded in her examination that she also has an account on the social networking site Facebook. The motion is brought pursuant to Rule 33.12 of The Rules of Court but, practically speaking, under the auspices of Rule 32.06 and 33.08(3) of The Rules of Court.

At issue:

Does the law of civil discovery in New Brunswick allow a party to compel production of Internet and Facebook usage records from the service provider of a Plaintiff who held an administrative clerk position prior to a motor vehicle accident when the basis of the claim filed by her is a soft tissue injury that is claimed to have resulted from the accident that prevents her from resuming full time work?

The decision lays out the legal precedent and reasoning as to whether such a request in the context of private litigation violates any Charter rights or expectation of privacy and then concludes:

In this instance I believe that the probative value of the information requested is of such a level that its disclosure will not infringe upon a reasonable expectation of privacy. That is so because the information sought is not, at least at this stage of proceedings, information that could qualify as revealing very personal information over which most right thinking Canadians would expect a reasonable expectation of privacy. Put another way, it does not reveal: “intimate details of the lifestyle and personal choices of the individual.”

Having said that, it appears clear that this may be only the first of more questioning by The Defendant’s counsel, Mr. Morrison, of the Plaintiff with respect to her general Internet and specific Facebook usage at the examination for discovery. If the questioning attempts to delve deeper into the Plaintiffs lifestyle as it pertains to these subjects, relevancy and privacy, it will require a re-examination of the reasonable limits of such questioning. For example, included in that assessment will be the extent to which an individual may claim a reasonable expectation of privacy in the use of social networking site electronic data.

Read more on All About Information.

Hat-tip, Canadian Privacy Law Blog.