Discoverability of Facebook Profiles

In my podcast on employers’ uses of an employee or candidate’s personal profile on an online social network, such as Facebook or MySpace, I discussed the discoverability of this information in a lawsuit.  Employers frequently research potential applicants’ online profiles for hiring purposesEmployers also can monitor current employees through their online profiles to ensure that they do not leak confidential or proprietary information or commit other wrongs harmful to the organization.  I’ve also speculated that what an employee posts about himself online could also be potentially important evidence in an employment-discrimination suit, as well.  There has been very little discussion of this question, though, by the courts.  3d men need help on laptop

That’s why a recent decision by the Ontario Superior Court of Justice is particularly interesting.  All About Information posted about the case, in which the defendant was permitted to cross-examine a plaintiff in a motor-vehicle-accident suit about material he posted on his Facebook profile.  The content, the defense argued, was relevant to the plaintiff’s claim for loss of enjoyment of life. 

The defense had not learned of the potentially revealing information until after the discovery period had closed.  The Master denied the defendant’s request, finding that the mere existence of a Facebook profile was not reason to believe it contained relevant evidence about his lifestyle.  Without evidence to support this conclusion, the request was nothing more than a fishing expedition. 

The appeal judge disagreed, stating:

With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.

Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).  I suspect holdings like this will become more and more common as employers (and defense counsel) begin to catch on to the wealth of information employees voluntarily disclose about themselves online.

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