Litigating in the Age of Social Media

Evidence & Social Media

More than ever, social media websites like Facebook, Twitter, Instagram and LinkedIn are being used as a medium for individuals and corporations to share their successes, voice their transgressions and to post about daily activities with the internet. The legal implications of these posts are rarely considered and as such, it is important to understand the how social media posts may be relevant in the context of litigation.

Discovery
As part of the litigation discovery process, parties are required to disclose “every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party” and to produce said documents unless privilege is claimed. While evidence found on social media networks is not specifically included in the definition of “document”, Canadian Courts have categorized evidence stemming from social media as being documentary and with the ease of removing tweets, posts and photographs, litigants must properly understand the potential consequences of taking such actions.

Manner of Service
Arguably, individuals check their social media accounts more often than their e-mails, which makes social media an enticing tool for effecting service on individuals who are difficult to locate or who are actively evading service. In a recent action, after unsuccessfully exhausting traditional methods of service such as attending the physical address, emailing the Defendant and contacting the Defendant via LinkedIn, the Plaintiff brought a motion whereby the Ontario Superior Court of Justice issued an Order for substituted service permitting a Plaintiff to serve its claim via Instagram and LinkedIn.

With the prevalence of social media in our lives, counsel must effectively use it as a tool in the litigation process to effectively represent their clients from the outset.