You’ve Been Served – On Facebook?

An Australian lawyer has won the right to serve a default judgment by posting the terms of the judgment on the defendants’ Facebook “Wall”. In a December 2008 ruling that appears to be the first of its kind anywhere in the world, Master Harper of the Supreme Court of the Australian Capital Territory held that the lawyer could use the social networking site to serve court notices.

The court had previously allowed the lawyer to attempt service by email and text messaging the couple’s mobile phones, but these attempts were unsuccessful. The defendants, Carmel Rita Corbo and Gordon Kingsley Maxwell Poyser failed to keep up the repayments on $150,000 they borrowed from MKM in 2007 to refinance the mortgage on their Kambah townhouse The Facebook profiles showed the co-defendants’ dates of birth, email addresses and ‘friend’ lists and declared the co-defendants to be friends of one another. This information was enough to satisfy the Master that Facebook would be effective in bringing knowledge of the legal proceedings to the attention of the defendants. (In fact, it seems that the news of the default judgment got out before the lawyer, Mr. McCormack, had the opportunity to serve the papers. The couple’s Facebook profiles disappeared from the social networking site).

Facebook, for its part, was quite happy with the result, stating: “We’re pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people’s lives.”

Interestingly, in an earlier Australian decision, Citigroup Pty Ltd. v. Weerakoon, reported in April of 2008, the Queensland District Court refused a request to allow substituted service of court documents by email to a defendant’s Facebook page. In so deciding, Judge Ryrie stated: “I am not so satisfied in light of looking at the uncertainty of Facebook pages, the facts that anyone can create an identity that could mimic the person’s identity and indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant.”

OTHER SOURCES:

“Facebook okay for serving court documents: Australian Court”, National Post (Wednesday, December 17, 2008)

Rod McGuirk, “Aussie Court OKs Using Facebook for Serving Lien”, ABC News (December 16, 2008)

Bonnie Malkin, “Australian couple served with legal documents via Facebook”, Telegraph (December 16, 2008)

 

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MySpace – MyEmails – MyPrivacy?

A married woman in Nevada sued her employer, claiming that he sent her inappropriate emails and gave her unwanted sexual attention. During the lawsuit, the employer’s lawyer discovered that the woman had set up a MySpace account where she pretended to be single. The employer’s lawyer wanted to see her Myspace emails; if this woman was looking for extra-marital affairs on Myspace, this might speak to her credibility. The judge refused.

In a decision of the Nevada District Court, Mackelprang v. Fidelity National Title Agency of Nevada Inc, a married plaintiff alleged that she was sexually harassed by senior members of her company, and that this led to her constructive dismissal. She alleged, among other things, that a vice president of her company sent sexually explicit emails to her office computer a weekly basis. During the course of litigation, the defendant’s lawyer discovered that, a few months after leaving the defendant’s employ, the plaintiff had opened two Myspace accounts; in one of the accounts, the plaintiff identified herself as a single 39 year old female who did not want children, and in another account, she identified herself as a married woman with six children whom she loved.

cartoon archive at funnytimes.com

The defendant’s lawyer obtained a subpoena directing Myspace to produce all records for those accounts, including private email exchanges between the plaintiff and others. In response to the subpoena, Myspace produced the “public” information regarding the accounts, but refused to produce private email messages in the absence of a search warrant or a letter of consent to production by the owner of the account. The plaintiff refused to consent to the obtaining of the release of the private messages on the grounds that the information sought by the defendants were irrelevant to the lawsuit and improperly invaded her privacy. She contended that the defendants were on a “fishing expedition” and that they had no relevant basis for discovering the private email messages on either account.

The defendant’s lawyer brought a motion seeking to compel the plaintiff to consent to production of the emails. The defendant’s pointed to the usual circumstances of the plaintiff’s two Myspace accounts as creating an inference that the plaintiff was using Myspace email to facilitate the same types of electronic and physical relationships that she had characterized as sexual harassment in her lawsuit. If the plaintiff had, in fact, been voluntarily pursuing extra-marital relationships through Myspace, then this information could be used to impeach her credibility and rebut her sexual harassment claims. The emails could telling as to whether the plaintiff had actually suffered emotional distress as a result of the harassment, and might contain admissions relevant to the case.

The Court disagreed with the defendant and refused to order production of the emails. The defendant had nothing more than a suspicion and speculation that the plaintiff may have engaged in sexually related email communications on Myspace. There was an insufficient connection between the accounts and the workplace to make her private emails relevant. The Court noted:

Ordering plaintiff to execute the consent and authorization form for release of all of the private email on Plaintiff’s Myspace.com internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.

The Nevada District Court opined that, although it was theoretically possible that emails on the Myspace account might contain relevant information, the defendant should have limited the request to the production of relevant email communications. The determination of whether certain email communications were relevant could be properly ascertained through the discovery process.

No Canadian case to date has considered a request for the production of Myspace or Facebook emails. It seems likely that Courts will treat these emails differently than the other information on a social network profile; even a “private” Myspace profile is viewable by all a user’s “friends” whereas email is not; consequently, a Court may not be able to infer from the nature of the social network service either the intent to make public, or the likely existence of, relevant email communication. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Myspace or Facebook email communications. It also remains to been seen whether evidence contained in a profile itself could give rise to a sufficiently reasonable inference that that email communications are relevant.  For example, if relevant postings on a Facebook wall made express reference to email communications, this might be sufficient to convince a Canadian court to order disclosure, notwithstanding the expectation of privacy surrounding such communications.

Production of Facebook Profiles for Use in Civil Litigation

FACEBOOK IN THE COURTROOM

Facebook refuses to fix obvious security flaw

In a recent decision of the Ontario Superior Court of Justice issued on February 20, 2009, Justice Brown ordered the production of a plaintiff’s private Facebook profile.   This is the second Canadian decision to order production of private Facebook pages for use in personal injury insurance litigation.  The full text of Justice Brown’s decision, Leduc v. Roman, is available through the Canadian Legal Information Institute (CanLII) website.

The use of Facebook in the courtroom is a hot, topical issue that is currently generating a lot of buzz among lawyers. For an overview of the current state of the law on this topic, please see my recent article, “‘Fessing up to Facebook: The Use of Social Network Sites in Insurance Litigation”. An abbreviated version of this article will be appearing in the next edition of Claims Canada.

* Image source: We Blog Cartoons.