The Court discusses the Facebook application:
The plaintiff set his privacy options to limit access to his posted material to “friends”. The defence was, therefore, not able to view what was posted.
The state of the law was summarized as follows:
But what about production of access-limited information?
The issue was addressed in the earlier case of Murphy v. Perger,  O.J. No. 5511 (S.C.J.) where the Court ordered production of "copies of the web pages posted on her private site, subject to the ability of plaintiff’s counsel to make future submissions in the event that any of the photographs personally embarrassed the plaintiff."
The Court in Leduc summarized the production obligation when dealing with social networking sites:
The Court then followed the approach in Murphy:
In those circumstances, "A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action."
This is not a fishing expedition and the Rules of Civil procedure require that the party seeking production must present "some evidence that a party possesses a relevant document before a court can order production." The Court gives some advice on how to go about this:
The general nature of the Facebook service is such that a court could infer, the "likely existence of relevant documents on a limited-access Facebook profile."
This is a very important case for those who practice in the area of employment law.
For example, an employee is terminated, sues and claims damages for wrongful dismissal. Mitigation is always an issue in these cases. If the former employee maintains a Facebook account or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.
There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.