The first step is the originating process (s3 CPA) - ensure that the correct originating process is

chosen:

1. Check whether it is (a) a statement of claim [which is a pleading] or (b) a summons2. A statement of claim must be used (UCPR 6.3):

a. For a debtb. For tort (including defamation)c. For fraudd. For a breach of duty (however arising)e. For a trust, or for land

It is used where the facts are in dispute --> will likely be this in the exam

3. A summons is used only where law is in question, and not fact must be used when:a. There is no defendant

b. It is an appeal

c. It is a proceedings for preliminary discovey

d. Where there is to be a transfer of the proceedings to the Court

4. A summons may be used for a declaration or injunction unless the application is in a proceedings already commenced.If the plaintiff uses the wrong oroginating process, the court has power to make orders that proceedings continue, or that new pleadings be entrerd (UCPR 6.5, 6.6

Are the requirements of the originating process met (particularly for a statement of claim)?

1. It must describe the parties and their addresses, including the address for service (r 7.1) -very limited scope for anonymity (J v L&A)2. The relief claimed and questions to be determined by the court must be noted (r 6.12)3. It must give a notice to the defendant indicating consequences if they don't file a defence of appearance (6.13 - SOC, 6.14 - summons)4. It must comply with all the formatting requirements of UCPR 4.2 - 4.95. Furthermore, a legal practitioner must certify that there are reasonable grounds that the claim filed has reasonable prospects of success (Legal Profession Act s 347)

Timeframe: An originating process is valid for (prior to seving) (r 6.2(4)):a) 6 months for the Supreme Court and other courtsb) 1 month in the District Court for a defendant in NSW, otherwise 6 months.If this time expires, a new claim can be brought by filing another originating process (6.2(5)).

YOU THEN NEED TO CHECK IF THE ORIGINATING PROCESS IS SERVED PROPERLY - See service notes

Has a notice of appearance (r6.9) (or other notice) been filed within the time limit of the originating process being served (r6.10 (1))? That is, has the allegation been responded to (r 14.26)?

If the notice of appearance is not filed in that time period, then the plaintiff may obtain a default judgment:

1. Statement of claim must be filed within 28 days OR 7 days after being unsuccessful in getting the statement set aside2. Summons must be filed by the return date (as set by the court - r6.15) OR 7 days after being unsuccessful in getting the summons set aside3. If an appearance (12.5) is filed may be withdrawn, but not if it was entered based on competent legal advice (Somportex)- A notice of appearance is accepting the dispute, but not defending it - "save as to costs" (r 6.11).- If you wish to defend the claim you must put on a notice of defence (which must also be certified by the legal practitioner under s 347 of the LPA) within 28 days (r 14.3 (1))- You may also file a notice of motion in the same time period if you object to the originating process or jurisdiction of the court (r 12.11).

The may also choose to cross-claim, in which case the plaintiff must answer the defence with a reply

Are the requirements for the form of the pleadings met?

1. Material facts (see below)2. No surprises3. Verification by affidavit4. If evidence is used, it must be used only to make out the case being pleaded

Are the requirements for the material facts met - in particular adequate particulars (r 15.1)?

Are further pleadings required?

Are the pleadings in danger of being struck out (if representing the plaintiff) OR can the pleadings be

struck out (if representing the defendant)?

The relief sought is confined solely to what the claims in the originating process (statement of claim) have

stated - relief is available ONLY on these joined issues

The court may order that the proceedings have:

1. Compulsory referral to a referee - the court will then choose to use the referee's report or not - see notes2. Court-annexed mediation (s26 CPA) -the parties must mediate in good faith -see the notes.

! Are$any$Interim$orders$required$prior$to$the$litigation$commencing?$

Interim$injunction$ Anton$Pillar$(search)$order$Mareva$(freezing)$order$

Must show that there is a 'prima facie case' and that the 'balance of convenience' favours the order being made (ABC v O'Neill)!

Ask:!(ABC!v!O’Neill):!

1. Whether the plantiff looks like they might succeed at trial (e.g. not frivolous)

2. Whether the inconvenience or injury which the plaintiff would be likely to suffer if an injuction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted!

If!the!court!are!satisfied!that!

there!is!a!danger!that!a!

judgment!will!be!wholly!or!

partly!unsatisfied!because!

the!person!absconds!(25.14!

(4)(a)),!the!assets!are!

removed!from!Aus!(b)!(i),!

disposed!of!or!diminished!in!

value!(b)(ii).!Se!also!Pure!

Logistics!v!Scott.!

The!order!must!be!confined!

to!preserving!assets,!therefore!they!must!be!a!

restriction!not!to!dissipate!or!

move!out!of!jurisdiction.!

(Jackson!v!Sterling!Industries)!

NOTE:!Respondent!need!not!

be!party!to!proceedings:!r!

25.13,!Cardile!v!LED!Builders.!

THIRD$PARTY$

25.14!(5):!The!court!may!

make!a!freezing!order!

against!a!third!party!if!they!

are!satisfied!that:!!

(a)!there!is!a!danger!that!a!

judgment!or!prospective!

judgment!will!be!wholly!or!

partly!unsatisfied!because;!!

(i)!the!third!party!holds!the!

power!over!assets,!or!

(ii)!is!in!possession!of!the!

assets!

!

The!court!should!grant!

injunction!over!third!parties!

where!the!third!party!is!in!

possession!or!has!power!over!

assets!of!potential!judgment!

debtor.!(Cardile!v!LED!

Builders)!

Does!the!plaintiff!suspect!that!

evidence!may!be!destroyed?!If!

so,!they!may!apply!for!an!

Anton!Pillar!order!under!UCPR!

r!25.19.!

1.!Are!the!requirements!met?!(UCPR!25.20;!

Austress'Freyssinet)!a) The!applicant’s!case!on!the!cause!of!

action!is!prima!facie!strong!(UPCR!25.20!

(a))!

b) The!potential!or!actual!loss!to!the!

applicant!will!be!serious!if!a!search!order!

is!not!made!(UCPR!25.20!(b))!(read!in!

conjunction!with!(c)).!

c) The!sufficient!evidence!!that!

i. The!respondent!possesses!important!

evidentry!material!(c)(i)!

ii. (There!is!a!real!possibility!that!the!

other!party!might!destroy!such!

material!or!cause!it!to!be!unavailable!

for!use!in!evidence!in!a!proceding!

(c)(ii)!

a) The!harm!likely!to!be!caused!by!the!Anton!

Pillar!order!to!the!defendants!and!their!

business!affairs!must!not!be!excessive!or!

out!of!proportion!to!the!legitimate!object!

of!the!order,!particularly!as!it!would!allow!

P!to!puruse!D’s!confidential!documents!

!

2.!If!the!requirements!are!met,!are!the!

required!terms!of!the!order!met?!

a) The!search!order!should!name!or!describe!

the!people!directed!by!it!(25.22(1))!

b) These!people!may!enter!the!premises!

specified!(1)(a)(i)!and!take!steps!in!

accordance!with!the!order!(1)(a)(ii)!

c) They!make!take!and!retain!in!their!

custody!anything!under!the!order!(1)(c)!

d) They!must!not!disclose!information!about!

the!order!except!obtaining!legal!advice!

for!up!to!3!days!(1)(d)!

e) The!thing!may!be!“searched!for,!

inspected,!removed!and!recorded”!(2)(a)!

and!(b)!

f) An!independent!solicitor!must!supervise!

the!execution!of!the!order!(UCPR!25.23;!

see!also!SC!Practice!Note!Gen!13)!

g) The!applicant!must!not!be!part!of!the!

search!party!(Practice!Note!13)!

Pre-trial considerationsCheck the jurisdiction

1. Local Courta. Small claims = $10 000b. General division = $100 000c. Personal injury/death = $60 000

2. IRC + Industrial Court - Employment law3. Land and Environment Court - environemntal cases4. District Court

a. Claims up to $750 000 unless parties agreeb. Unlimited for personal injury claimsc. All motor vehicle claims

5. Supreme Courta. Common law divisionb. Equity division

Transferring proceedings to the appropriate courtIf proceedings have been started in one court, but there is a more appropriate one, under s5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the proceedings can be transferred.

The test is under s5(2)(b) which allows transfer where:a) It is more appropriate that the proceedings be determined by the other court based on:

i. The relevant proceedings are incapable of being instituted in the first court

ii. The law in question or value of the claim is not within the jurisdiction of the first court, but is in the second (see Bankwest v Seabrook)

iii. It is in the "interests of justice" (BHP v Schultz)

Note: Proving a more appropriate forum does not involve proving that the first court was 'clearly inappropriate', only that the second court is more appropriate (BHP)

Check whether preliminary discovery is required and if

so, it is available.Note that in both limbs, the use of 'may'' implies that the applicant does not need to establish that the information sought WILL definitely give them the identity of the person or information to determine if they have a claim

Is there an unidentified defendant?Preliminary discovery can be used to determine the "identity or whereabouts" of a defendant (as defined by UCPR r 5.1)1. The applicant must show that:

a) They made reasonable enquiries but could not ascertain the whereabouts or identity of the defendant (5.2(1)(a)). Reasonable enquiries means all practical enquiries available (i.e. a balance between searching thoroughly but not spending too much money). The fact that more enquiries can be made does not mean that the applicant has failed to make reasonable enquiries (RTA v ANCP)

b) Another person may have information by oral examination or document which could assist the prospective plaintiff. This information need not be the definitive solution; however it cannot just be a fishing expedition (RTA).2. The applicant can then file a summons (5.2(8)(b)) with a supporting affidavit (5.2(7)(a)) to be personally served which addresses the list of things in the notes including who the person is, what information is required, steps to prove reasonable inquiries have been made (CGU Insurance v Malaysia International Shipping) and evidence that the proposed claim is bona fide (Stewart v Miller).3. The court would then order the person with the information to attend court for examination or give discovery of the related documents (5.2(2))

Is information required to check whether a claim is actually available?

Preliminary discovery can be used to claim discovery of documents so as to assist the applicant to decide whether to bring a claim (UCPR 5.3).1. The applicant must show that:

a) They may be entited to make a claim for relief. They need not show a prima facie pleadble case, but must show more than just a mere assertion(Morton v Nylex) - it must be "belief", an inclination of the mind to the proposition (St George Bank v Rabo).That is, is there a reasonable cause to believe that a claim could be had based on showing some recognised legal ground (Panasonic; Hooper v Kirella). Essentially, the question is whether the applicant has sufficient information to make a decision on whether to commence proceedings - it is not about establishing a cause of action (Hatfield). If the plaintiff already has a prima facie case, preliminary discovery will be denied as it would be seen as gathering evidence to strengthen, rather than establish a case (Alphapharm v Eli Lilly).b) Then, having made reasonable enquiries, the prospective plaintiff is unable to obtain sufficient information to decide whether or not to commence proceedings 5.3(1)(a)). What establishes "reasonable enquiries" is a question of fact and the relationship between the applicant and prospective defendant (Steffan v ANZ) and relationship between the prospective defendant and the source of information (Hatfield v TCN)b) That another person may have or had possessed a document which could assist the prospective plaintiff in determining whether they have a claim (5.3(1)(b))c) Inspection of such a document would assist the applicant to make the decision (5.3(1)(c))2. The judge should then exercise discretion in making or rejecting the application (Panasonic Australia v Ngage). Where the plaintiff has demonstrated a need for the information and the defendant does not contest, the order will usually be given.3. The applicant can then file a summons (5.2(8)(b)) with a supporting affidavit (5.2(7)(a)) to be personally served which addresses the list of things in the notes including who the person is, what information is required, steps to prove reasonable inquiries have been made (CGU Insurance v Malaysia International Shipping) and evidence that the proposed claim is bona fide (Stewart v Miller)

4. If there is a contested application, the costs follow the event..

Check that the claim has been brought

within the limitation period

Recall that limitation periods are substantive law.Check the limitation period with the table in the notes

1. Start off any costs discussion by noting:

a) Costs orders are at the discretion of te court (CPA

s98(1)(a)) and the court has the power to determine the

costs (98(1)(b)) and whether they be awarded as

ordinary or indemnity costs (98(1)(c))

b) The standard order is that costs follow the event (i.e.

the loser pays) (UCPR 42.1; see also Oshlack) unless the court deems it necessary to deviate from these orders(Credit Lyonnais Australia v Darling)

2. In the scenario, are there reasons to deviate from the standard order?

Circumstances in which the court may deviate from the standard order are (Baulderstone v Gordian):

a) Where there are multiple issues, and the unsuccessful party can prove that there is a dominant or

separable issue which was in their favour - the successful party will not recover costs for this.

b) Where there are multiple successful parties, only one set of costs will be awarded - if actions were

unreasonably duplicated by the parties, the costs order will be reduced

c) Indemnity costs may be awarded (as opposed to ordinary) where:

i. The unsuccessful party wad 'delinquent' (Oshlack) - that is, they acted unreasonably (Priest v NSW) for example by delaying proceedings or prolonging a vexatious case(Colgate-Palmolive v Cussons). Fighting fiercely for a case is not unreasonable (Berkely)

ii. Breaching of s56(3) of the CPA by not abiding by the duty to promote the working of the

overriding purpose

iii. In the case of offers of compromise, by unreasonably rejecting an offer of compromise

(SEE THE RULES IN THE 'INCENTIVES TO SETTLE' SECTION - UCPR 42.14, 15 and 15A)

3. Have any alternative situations arisen where costs may be awarded?

Section 98(3) of the CPA note that the court can order costs at any

stage of the proceedings. This power may be invoked where:

a) A party has failed to abide by a rule of court, which has caused

expense to the other party - the non-complying party will be required

to compensate this loss (UCPR 42.10)

b) A party (OR LAWYER s56(4)) fails to comply with their duty to assist

with the promotion of the overriding purpose (s56(3); see Priest v NSW)

BUT

c) The court MUST NOTE use costs to punish the parties (encouraging

compliance with rules is not punishment) (Oshlack; Douglas v Lawton)

4. Make sure that costs have not been awarded against a third party to the litigation other than in the following exceptional circumstances (Murphy v Young):

a) If the third party is closely connected to hte proceedings (Palmer v Walesby)

b) Where it is for limited purposes like claims of privilege (ACP Magazines v Motion)

c) If a costs order is being made against a solicitor (SEE BELOW)

When will a costs order be made against a solicitor?

If a lawyer breaches the following rules, costs may be ordered against them; however this will

only be awarded in very clear cases (Lemoto v Able Technical [2005])

i. CPA 2005 s56(4) requires all practitioners to promote the assisting of the overrdiing purpose

- cost sanction may be ordered under s99 for serious neglect, incompetence or misconduct or for accruing costs without reasonable cause)

ii. Legal Profession Act 2004 (LPA) s347 requires lawyers to ensure there are reasonable

grounds for success of a case before it is brought to trial (cost sanction ordered under s348

for failure by either reimbursing client for lost funds or indemnifying client against paying the

opponent's costs)

However costs should not be awarded purely because a party pursues a "doomed claim or

defence" (Ridehalgh). Therefore the onus is on the costs applicant/client to demonstrate that

the lawyer provided services without reasonable prospects of success (Treadwell v Hickey; s345 LPA) which is said to mean 'so lacking in merit as not to be fairly arguable' (Degiorgio v Dunn)

5. Can the defendant claim security for the costs of defending the plaintiff's claim (UCPR 42.21 (as per UCPR r 2.1))?

The defendant can bring an application for security for costs (under 42.21); though they must

do so promptly (KP Cable) and before they incur considerable expense (Smail v Burton) so that

the plaintiff can ascertain their position from the outset before deciding to litigate (Tripple Take).

In determining whether security will be given, you consider the following steps (BBC Nominees as quoted in Fire Containment v Peter Robins):

a) Have regard for the factors under UCPR r 42.21 (1) as to establishing that there is reason to believe that the plaintiff would be unable to meet a costs order against them (FFE Minerals Australia v Mining Australia). "Reason to believe" is a low threshold test (Livingspring v Kliger)

This involves a common-sense approach to examination of the person or corporation's

financial affairs at the time of judgment (Professional Vending Services v Christou) and to then

make an assessment as to the risk of inability to pay and the range of assets available

(Sugarloaf Hill Nominees v Rewards Projects).

NOTE: For a natural (actual) person, the plaintiff being poor is not enough to order security of

costs (42.21 (1B); Idoport v NAB); though it will be a relevant consideration for the court (Lucas v Yorke; r 42.21 (1A)(c))

NOTE: If the plaintiff is a corporation, the power to order security of costs also arises under

s1335 of the Corporations Act.b) Then, if the grounds under (1) are established, the court will consider the factors listed

under (1A) as they are relevant to determine whether security should be awarded.

The court has unfettered discretion to order security (Merribee Pastoral Industries; Westralian Goldmines), but it will not be made automatically (Barton v Minister for Foreign Affairs) NOR

arbitrarily or where it may frustrate legislative intent (Oshlack)

What happens if the plaintiff fails to comply with an order for security?

1. The court may order dismissal of proceedings (UCPR 42.21 (3))

2. The court may stay proceedings (CPA s67)

6. Is there an issue of joint parties?

a) Usually the default order of standard costs would apply if P is

successful against all D's or v-v.

This may be an issue where P is successful against D1, but not D2. In

this case the following orders may be made:

a) Bullock orders - P pays D2's costs, and then seeks to recover the

cost from D1. This is an issue if D1 is insolvent.

b) Sanderson order - D1 pays both P and D2 costs directly. This is

preferred by the plaintiff. A Sanderson order will only be given if:

i. It was reasonable for P to proceed against D2, despite

them being unsuccessful

ii. The conduct of D2 makes it reasonable for their costs to be

imposed on D1

Electronically stored information and social media: implications for

discovery and evidence

Michael Legg Æ ANOTHER SUMMARY IN COURSE NOTES

Introduction

Communications or interactions between people that may have been carried on through conversation, telephone or letter are not being carried on through email and social media

The re-creation of events is more likely to draw on information technology rather than rely on human recollection

The factual matric of a dispute is contained in electronically stored information (ESI), e.g. social media, and needs to be collected, reviewed and ordered for disputes to be resolved justly.

ELECTRONICALLY STORED INFORMATION (ESI)

An important starting point in understanding the impact of ESI is to appreciate how ESI differs from paper information

x Volume – the ability to create and share ESI easily means it is growth at an exponential rate

x Variety of sources – cloud, internal/external hard drives, phones, tablets, computers x Variety of formats – word, excel, ppt, pdf, jpg

x Dynamic – the information can change with time x Hidden information such as metadata

x Dependent on system that created it to be comprehensible

x Difficult to delete

The most publicised effect of ESI has been in relation to the cost and scope of discovery

CLOUD COMPUTING

Cloud is still evolving and involves access through high speed internet software, platforms and infrastructure, which are managed or owned by third party provides

The main ramification of cloud computing is that for many entities they, or their employees, are no longer the custodians of the records the entity produces or receives. While this can raise important issues as to privacy and data protection, for litigation it raises novel issues as to who is obliged to comply with court sanctioned requests for documents

SOCIAL MEDIA

Social media refers to interactive websites that allow users to communicate information and foster online contacts or communities

Most social media websites allow users to set varying degrees of privacy controls that limit the individuals who may view and interact with the users on their social media profiles

The  average  social  media  profile  contains  useful  details  such  as  a  person’s  DOB,  address,  occupation,  relationship status and education, as well as potentially significant information such as associations and photographs

While social media is composed of, and is a form of, ESI it does raise additional issues because ESI has usually been more significant for businesses or governments while social media has a far greater individual or private role

ESI AND DISCOVERY

ESI presents a novel challenge for litigation through requiring new practices and technologies to manage its sheer volume. The volume of discoverable documents has also seen calls for cultural change

There have been technological innovations such as algorithms aimed are de-duplication, coding or classifying documents using meta data, keyword searching etc. However, technology has not replaced lawyers and the need for human input and human review to ensure that the technology is working as required

However, the scope of ESI continues to broaden. Palavi v Radio 2UE Sydney: the ratio station sought discovery of mobile phones believed to have incriminating photos and text stored on them and the court enforced the request

x Other ESI include voicemail, voice recordings, call data, address books, calendars etc.

SOCIAL MEDIA AND DISCOVERY

Social media adds a further dimension to discovery but also to cost. The vast amount of information lawyers may find on social networking websites can be a treasure trove of discoverable information

Facebook posts have also been the basis of disputes. Australian businesses have dismissed employees on the basis of statements made about other employees on Facebook.

OBTAINING ACCESS TO ESI AND SOCIAL MEDIA

Access to ESI has been pursued through the formal court processes of discovery and subpoenas.

While there remains the possibility of discovery of ESI going awry, the legal profession and court shave began to master the process

The discovery of social media is able to draw on the lessons from ESI but also raises new issues including some dealing with ethical issues for lawyers:

1) Conflict between privacy and discovery: in Leduc v Roman there was an issue about the direct relevance, but also about the privacy. Ultimately they decided the FB page was relevant

2) Rise of lawyers or parties seeking to access social media informally or without court involvement: where informal methods utilise deception or are contrary to the professional conduct rules of the legal profession, the admissibility of the material obtained may need to be considered through the lens of s138 of the Uniform Evidence Law as material obtained improperly or illegally

3) Social  media  been  considered  the  ‘smoking  gun’: this should not obscure the need for the sought after material to be defined in accordance with the court rules for discovery and subpoena. The ubiquity of social media does not equate to an automatic presumption of relevance or necessity for the resolution of a dispute

4) Where ESI or social media is stored on a cloud: the contractual arrangements between the entity in litigation and the 3rd party cloud computing provider may need to be considered. The  litigant’s  power  to  obtain  the  documents  stored  with  the  third  party  will  depend  on  the  cloud computing agreement

AUTHENTICITY AND RELIABILITY

There is often no verification as to the identity of the person creating an account. Users may not guard the confidentiality of passwords or leave their logged on accounts unattended. Consequently social media may be a source of false or unreliable evidence

In the US, a body of case law has developed in which the avenues for verifying or testing the authenticity of social media have been discussed. They include having a witness testify that the evidence is what it purports to b, that is he or she created social network profile and posted the communication

x In Tienda v State, a Myspace page was authenticated through the extent of evidence such as the  defendant’s  nickname  being  used,  the  city,  photos,  education,  and  references  to  the  crime committed

x In Griffin v State, the  court  held  that  a  witness’s  birthday  locate  and  name  was  not  sufficient  foundation to authenticate

‘ESI  and  Social  Media:  Implications  for  Discovery  and  Evidence’  – Michael Legg

x Social media refers to interactive websites that allow users to communicate info and foster

online contacts or communities.

x Most social media websites allow users to set varying degrees of privacy controls that limit

the individuals who may view and interact with the users on their social media profiles

x The average social  media  profile  contains  useful  details  such  as  a  person’s  date  of  birth,  address, occupation, relationship status and education, as well as potentially significant

information  such  as  associations,  ‘likes’,  comments,  messages,  photos  and  videos

x While social media is composed of, and is a form of, ESI it does raise additional issues because

ESI has usually been more significant for businesses or governments while social media has a

far greater individual or private role. Businesses and governments are using social media but

do so from a position of greater knowledge about litigation responsibilities than most

individuals.

Social Media and Discovery Social media adds a further dimension to discovery but also to cost. The vast amount of

information a lawyer may  find  on  a  social  networking  site  can  be  a  ‘treasure  trove  of  discoverable  information.’  Numerous  examples  now  abound.  In  2011,  1/3  of  all  divorce  filings  in  the  UK  contained  the  word  ‘Facebook.’  In the US, 81% of the American Academy of Matrimonial Lawyers’  members  cited  an  increase  in  the  use  of  evidence  from  social  networking  websites  in  divorce proceedings during the period 2005-2010. In Australia, Facebook posts have also begun

to be relied on in family law cases, including in Condon Nixon v Rivers where derogatory

Facebook posts about the mother were relied on by the mother to support a sole parenting

order.

In a medical negligence, workplace injury or a car accident case, the primary purpose of seeking

access to Facebook is usually to establish that the plaintiff is not as seriously injured as claimed in

a lawsuit. If a person posts a picture of him or herself skiing or skydiving then the harm caused by

the negligence or accident may be far less than alleged.

In Mai-Trang Tbi Nguyen v Starbucks Coffee Corp, the plaintiff sued her former employer for

sexual harassment, religious discrimination and retaliation after having been dismissed for

threatening violence toward co-workers and for inappropriate conduct. The defendant obtained summary judgment  with  the  help  if  the  plaintiff’s  Myspace  Page,  in  which  she  stated:  ‘Starbucks  is  in  deep  shit  with  GOD  …  I  thank  GOD  4  pot  2  calm  down  my  frustrations  and  worries  or  else  I  will  go  berserk  and  shoot  everyone.”  Facebook  posts  have  also  been  the  basis  of  disputes.

Australian businesses have dismissed employees on the basis of statements made about other employees on Facebook.

In the US, the discovery of social media has become sufficiently mainstream that the US legal

encyclopaedia American Jurisprudence, now  contains  a  chapter  entitled  ‘Pretrial  Involving  Facebook,  Myspace,  LinkedIn,  Twitter  and  Other  Social  Networking  Tools.’

Obtaining Access to ESI and Social Media The discovery of social media is able to draw on the lessons from ESI but also raises new issues

including some dealing with ethical issues for lawyers. The first issue, derived mainly from the

use of social media by individuals rather than corporations is the conflict between privacy and discovery. In the Canadian case of Leduc v Roman the plaintiff claimed damages for personal

injury  as  a  result  of  the  defendant’s  negligence.  The  defendant  sought  discovery  of  Leduc’s  Facebook page; but it was denied, on the basis that the direct relevance had not been

established, and also due to privacy concerns. On review in the Supreme Court, it was held that

private and limited access Facebook profiles do not affect the obligation to identify and produce

postings related to a matter in issue. Finally, given the ruling, the court cautioned lawyers to put

their  clients  on  notice  that  documents  posted  on  the  party’s  Facebook  profile  may  be  relevant  to  allegations made in the pleadings.

Just as personal and private writings such as diaries, journals and letters are discoverable so are

social  media  regardless  of  the  privacy  settings  adopted.  Facebook’s  policy  recognizes  as  much  when  it  says,  ‘We  may  share  your  information  in  response  to  a  legal  request  (like  a  search  warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so.’  Similarly  Twitter’s  terms  of  service  state  ‘We  also  reserve  the  right  to  access,  read,  preserve,  and  disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law,

regulation,  legal  process  or  government  request…’

The discoverability of social media should not be seen as trivializing or disregarding the

importance of privacy. Rather, it recognizes the particular position of courts as an arm of the state

charged with resolving disputes by reference to evidence to arrive at correct results. Further,

courts are able to assess the need for privacy or confidentiality by weighing it against open justice and if the former prevails making orders to prevent its disclosure beyond the instant litigation.

The second issue is the rise of lawyers or parties seeking to access social media informally or without court involvement. This can arise because sites such as Facebook allow for a range of

privacy settings, including making information publicly available. Equally, even private sites that

are  available  to  ‘friends’  or  ‘followers’  only  upon  the  owner  of  the  material  granting  access  may  be accessed through the owner being tricked or deceived into granting access. In the US there

have  been  examples  of  lawyers  ‘friending’  unrepresented  witnesses  or  having  an  ‘agent’  with  some affinity to the person, such as mutual interests or past education or employment,

‘friending’  the  person  so  as  to  access  their Facebook page to look for useful evidence.

Where informal methods utilize deception or are contrary to the professional conduct rules of the

legal profession, the admissibility of the material obtained may need to be considered through

the lens of s 138 of the Uniform Evidence Law as material obtained improperly or illegally. The

court is then required to balance a range of considerations such as the probative value of the

evidence, the importance of the evidence in the proceedings and the gravity of the impropriety or

contravention.