New Brunswick

Facebook photo seizure settlement reached

An insurance company has settled a personal injury lawsuit after a New Brunswick judge ordered a woman's lawyer to seize his client's Facebook photos.

N.B. judge had ordered a woman's Facebook photos seized

A New Brunswick judge has ordered a lawyer to seize his client's Facebook photos. (Thierry Roge/Reuters) (Thierry Roge/Reuters)

An insurance company has settled a personal injury lawsuit after a New Brunswick judge ordered a woman's lawyer to seize his client's Facebook photos.

The case arose after Erica Sparks was injured in a car accident in 2008 and sued the other driver for damages.

The insurance company of the other driver fought the claim, and wanted to see Sparks's Facebook photos to determine the severity of her injuries.

Court of Queen's Bench Justice Fred Ferguson worried she might delete some photos if she knew she was about to be ordered to turn them over.


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The legal fight took a controversial turn when Ferguson, in a Feb. 4 ruling, ordered James Crocco, Sparks's lawyer, to hire another lawyer to summon Sparks to a meeting without telling her what the meeting was about.

At the meeting, the second lawyer would tell Sparks she was under a court order to log in to Facebook and hand over her photos.

Crocco planned to appeal the decision to the New Brunswick Court of Appeal to quash the judge's order.

But the insurance company decided to settle the case by paying Sparks a cash award to compensate for her injury.

Crocco said he would have liked to take the case to the appeal court because of the broader principle at stake, but said the settlement was the right move for his client.

He said he believes the insurance company didn't want to risk losing the case if it went to appeal.

'Civil search warrant'

Sparks's lawyer said the judge's order amounted to him serving a civil search warrant on his own client.

"I couldn't tell her or give her legal advice as to whether she should comply with that," Crocco said.

Crocco eventually did as the judge ordered because he had to follow the decision, but was asking the appeal court to quash the judge's order claiming it threatens a person's right to legal advice.

"It, in my view, amounts to almost a civil search warrant, but using one's own lawyer to execute it, which as far as I know is unknown to Canadian law," Crocco said.

Lawyers in other provinces have picked up on Ferguson's decision.

Erik Magraken wrote on his B.C. Injury Law blog that he didn't think the same order could be issued in his province.

"While there are cases requiring plaintiffs to produce social media data in personal injury lawsuits in B.C., I am not aware of any cases in this province going as far as the above decision," Magraken wrote.  

'Unacceptable risk'

In Ferguson's decision, the judge said in most cases a person can be relied on to not delete information from a social network site, such as Facebook, because if caught, it could hurt his or her legal case.

But the New Brunswick judge decided to issue the order anyway.

"The defendant has established that proceeding in the usual fashion by having both parties being present for the motion to preserve and protect the data sought would expose the currently unexposed data to an unacceptable risk that it may be removed from the profile(s) of the plaintiff before it can be secured," the judge wrote.

This isn't the first time Ferguson has ordered a person to turn over their Facebook activity.

In 2009, Ferguson ordered a Miramichi woman — who was suing a man after a 2004 car crash — to reveal how often she uses Facebook.

In a lawsuit, Rosemay Carter told the court she hadn't been able to return to work full time as an administrative clerk at the Miramichi Hospital.

During the discovery process, a lawyer asked Carter to turn over her internet records from Bell Aliant and specifically to disclose her Facebook activity. She refused, saying turning over that information would violate her privacy.