Of course, hard paper documents can be shredded and the Courts have dealt with the issue of spoliation (intention destruction of evidence) for hundreds of years.
The remarkable (and to me deeply problematic) decision of the New Brunswick Court of Queen's Bench in Sparks v Dube (February 4, 2011 docket w/c/07/10) is a decision where the preservation of social network postings led to an extraordinarily intrusive preservation order. The decision is not easily found (apparently only just un sealed -- I can scan a copy on request).
The plaintiff sued for soft tissue injuries following an accident. She had a Facebook page and the public section showed at least one photograph that was relevant to the extent of her physical injuries.
The defendant sought an order that the plaintiff be required to download the full extent of her social network sites for consideration by the Court. The order was sought without notice to the plaintiff and the defendant asked that the plaintiff's lawyer be conscripted to ensure the downloading was done properly. The plaintiff was not to be told anything about the order -- she was to be asked to come to a meeting, without explanation why, at which time she would be compelled to perform the download.
No evidence of any destruction or deletion on social networks was tended. The defendant relied on the fact that deletion was possible (para 21).
The Court agreed with the defendant and subject to requiring the supervision be conducted by a lawyer other than the defendant's lawyer granted the order.
One might ask, is this a precedent to allow seizure and copying of paper documents because such can be, for example, shredded? Why would the Court not make a preservation order and hold breaches of that (if breached) against the plaintiff? Why would the Court not require some evidence destruction or deletion was pending? Does this mean "civil search warrants" should be granted routinely because destruction of evidence is possible?
While, to this writer's mind, the decision is misguided, wrongly decided and a troubling precedent.
4 comments:
If you have nothing to hide why do you care? And if you have something to hide it should be disclosed. Too many plaintiffs lie and cheat. There should be a ban on personal injury claims. There should be an arbitrator who investigates impartially and awards proper damages.
You've hit upon an interesting problem that troubles litigation lawyers (like me) all the time.
Disclosure rules are in many respects toothless when dealing with growing numbers of dishonest litigants who do destroy evidence -I would think more often that we like to admit.
I'm certain there are shredded and burned documents galore, particularly on small scope litigation where there are no typical corporate procedures for documenting decisions and transactions.
So.
Do we just pretend and look the other way - or do we welcome growing intrusion of the state into our lives for the sake of assuring proper due process and retention of evidence?
Is there any doubt in your mind that if someone called this woman and said, "Look, an application is being brought this afternoon to allow access to your facebook page", that she would have immediately gone in and destroyed any reference to her activities where inconsistent with her alleged injuries?
R.G.H.
You make a good point -- I guess my real issue is the difference between paper and e-docs seems wholly unprincipled. Best
jcm
do you think it is okay for a judge to revoke someone's counsel, and to revoke counsel right to their client. should one's own counsel device their own clients?
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