Spend Long Hours on Facebook? Claim You Can’t Work and You’re On the Hook!

A British Columbia Court agreed that a plaintiff’s late night computer usage on Facebook was relevant to his claim that he was unable to work. The Court ordered production of his computer hard drive to determine the period of the time he spent on Facebook between 11 p.m. and 5 a.m.

In Bishop v. Minichiello, [2009] B.C.J. No. 692 (S.C.J.), the plaintiff alleged that a brain injury caused him ongoing fatigue which prevented him from being able to maintain employment. The defendant brought a motion to obtain production of the plaintiff’s hard drive of his family computer so that he could have it analyzed in order to determine the periods of time that the plaintiff spend on Facebook between 11 p.m. and 5 a.m. each day. The defendant argued that the plaintiff’s late night computer usage was relevant to the lawsuit; the plaintiff had told a doctor that he spent a substantial amount of time on Facebook chatting with his friend late at night, and that his sleep varied with the time that his friend went to bed.

On examination for discovery, the plaintiff’s mother had confirmed that the plaintiff was the only person using the family computer between those hours. The plaintiff argued that, at times, his friends could use the computer once he logged into Facebook, and that the hard drive contained information that was irrelevant to the litigation and so should not be produced. Justice Melnick noted, however, that simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose all relevant information. The Court concluded:

  • Facebook login/logout records are documents stored in electronic form for the purpose of litigation;
  • The information sought by the defence could have significant probative value in relation to the plaintiff’s past and future wage loss;
  • The value of production was not outweighed by confidentiality, or time and expense required to produce the documents; and
  • The order sought was so narrow that it did not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.

Given that not all of the information on the hard drive was relevant, and that privacy issues of other family members might be implicated, the Court ordered that an independent expert was to review the hard drive and isolate and produce the relevant information for the defendant’s counsel.

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One Response

  1. […] See Pamela Pengelley, “Spend Long Hours on Facebook? Claim You Can’t Work and You’re on the Hook!“, Res Ipsa Loquitur, April 22, 2009, (citing Bishop v. Minichiello, B.C.J. No. 692 (S.C.J.) […]

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