Ethical and Legal Issues in E-Discovery of Facebook Evidence in Civil Litigation
15 C.J.L.T. 335
29 Pages Posted: 11 Jan 2018 Last revised: 14 Nov 2018
Date Written: January 6, 2018
The increasing interest by litigating counsel in discovery of social media evidence in civil litigation comes with ethical and legal challenges. The ethical challenges arise from the duty of counsel to investigate facts, and preserve evidence related to litigation, as well as the ethical rule prohibiting contact with a represented person including contact by means of social media. There are also legal challenges associated with the process for discovering, preserving and collecting relevant evidence in social media in the course of litigation. This paper examines the ethical and legal issues in social media e-discovery in the course of civil litigation with focus on personal injury litigation. The paper begins with a general overview of Facebook as a social media platform, then it proceeds to examine the ethical issues involved in social media e-discovery by counsel in the light of the Federation of Law Societies of Canada’s Model Code of Professional Conduct. The paper concludes with examination of how case law across selected jurisdictions in Canada has sought to address the legal issues arising from e-discovery of Facebook evidence in civil litigation. While this paper focuses on Facebook (the most popular social media platform), the issues raised and discussed also apply to other social media platforms.
Keywords: e-discovery, facebook, social media, ethics, privacy, civil litigation
JEL Classification: K13, K41
Suggested Citation: Suggested Citation