Spoliation and Social Media

by Dentons

[author: ]

News media have paid significant attention to court orders requiring production of relevant documents from Facebook and social media sites in the course of litigation. As described in my recent post, the Ontario Information and Privacy Commissioner has recently published a booklet on privacy and reference checks.

From the Canadian litigator’s perspective, all the fuss might be difficult to appreciate. In Ontario, for example, the Rules of Civil Procedure require that litigants must disclose to all of the parties to the litigation the existence of every relevant document in their possession, power or control and must produce to the other parties all of those relevant documents that are not privileged.

A document is defined by the Ontario Rules of Civil Procedure to include data and information in electronic form. Electronic information will be in the power of a party if that party could obtain a copy of it. So, pictures and posts accessible through your social media account are documents and within your power to produce. The only question is whether those posts are relevant.

Photographs and posts to social media accounts may be relevant to litigation in a number of ways. In a personal injury or long-term disability case, they may suggest that claims of being unable to enjoy life or to work are exaggerated or false. They may suggest that a litigant was in a location or with people as alleged and contrary to protestations otherwise. They may contain evidence of defamation or the truth of what might otherwise be defamatory statements.

Once litigation has been commenced or is contemplated, litigants and potential litigants should be careful, however, that they do not take steps to “cleanse” their social media accounts. It often comes as a surprise to litigants that they are required to preserve physical and electronic documents – even if that material might be unhelpful to their case. However, the preservation obligation will often begin even before litigation has been commenced. Once a demand letter is drafted or received, or legal advice is sought with respect to potential litigation, a potential litigant may be required to preserve evidence. Therefore, individuals involved in litigation or where litigation is a reasonable possibility should seek legal advice on their obligations.

Intentionally destroying evidence is called spoliation. Spoliation occurs where a party (the spoliator) has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. In Canada, spoliation usually produces an adverse inference that the evidence would have been unhelpful to the spoliator and may result in sanctions.

A recent U.S. case illustrates some of the pitfalls and, in the U.S. sanctions, for spoliation and social media (Lester v. Allied Concrete Co., Case No. CL09‐223 (Va. Cir. Ct. Sep. 1, 2011), and Lester v. Allied Concrete Co., Case Nos. CL08‐150, CL09‐223 (Va. Cir. Ct. Oct. 21, 2011):

  • The plaintiff was the husband of a woman who was killed in an automobile accident. He sued the truck driver and the driver’s employer and initially won a substantial damage award.
  • During the discovery process for his trial, he was asked about his Facebook account. The defendants had produced a photo justifying the request that was apparently taken after his wife’s death and showed him holding a beer can and wearing a “I [heart] hot moms” t-shirt.
  • The plaintiff, with the lawyer’s advice, deleted the Facebook account and responded that he did not have a Facebook account at the time of responding to the discovery requests.

The Virginia court was not impressed. It cut the damages award to the plaintiff in half and awarded cost sanctions against both the plaintiff and his lawyer.

In Canada, courts are reluctant to make similar awards preferring to remedy the wrong in other ways, such as providing procedural remedies for additional discovery and drawing adverse inferences that the destroyed documents would have been unhelpful to the party who destroyed them. Courts can also award cost sanctions. To date, however, courts have not awarded damages against the spoliator. Nevertheless, once litigation is contemplated – resist the urge to press delete!



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.