Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m S E P T E M B E R 2 0 1 8 55 In texting, the use of emoticons, emojis and now "bitmojis" is advancing in litigation evidence, says Jason Wadden, a part- ner at Goodmans LLP in Toronto, who this year presented at the Ontario Bar Association annual conference and to the Law Society of Ontario on the use of social media in litigation and legal practice. Wadden points to international litigation, which has relied on emoji evidence. Perhaps the most colourful case was an Israeli small- claims dispute between a landlord and pro- spective new tenants, in which the landlord successfully sued for damages based at least partially on emojis in the prospective ten- ants' text messages, which the judge agreed indicated an intent to rent the landlord's apartment. The judge found the couple had "acted in bad faith" by then backing out after the landlord had taken down the apartment listing. And in a Michigan case, the judge agreed with the defendant that the latter was being facetious, not defamatory, in an online comment he made using an emoji that was determined to indicate a joke or sarcasm. Now, Wadden says, the use of "bitmojis," or personal emojis, can be used to harass by altering someone's photo in a bitmoji, for example. Or, where a high school girl has expressed disinterest in a boy but "he keeps sending more eggplant emojis [denoting male genitalia], could that be part of a pattern of harassment?" Wadden identifies three best practices for using social media in litigation. The first, he says, is to address the need for social media evidence at the beginning of a case. "Social media evidence can disappear quickly," he says. "Consider that as a possibility in case planning, and do it early." Second, involve experts in the collection of evidence to best preserve it if the authenticity of a social media post is at issue later on. When that happens, "if you're able to gather more of the metadata, that can be very helpful," Wadden says. "If someone posts a photo on social media, there may be a question as to whether that photo was doctored. . . . If you have an in-house or outside technology expert, there may be a determination" of that, he says. "Or, they can at least pre- serve the information on the post, and then you can later on get an appropriate person to determine what alteration has been made." Also, experts may appear as witnesses in court, whereas lawyers or members of their firm should not. The third issue is addressing "the evolving record" with the client. Some clients, especially younger ones, may want to post information on social media about their court case. However, "that could create new evidence that might have an impact on the case," says Wadden, and the client should be cautioned in this regard. "So, for lawyers, it's not just gathering and preserving records that exist," says Wadden, "but making sure there's not new social media coming from [one's own client] about issues at play in the case, unless it's done in a considered fashion." What expectation of privacy, if any, do individuals have in their own social media accounts? It's not as much as they may think. "Expectation of privacy is a loaded phrase, and it's usu- ally used in a criminal context," says Andrew Bernstein, the Toronto-based practice group leader for Torys' litiga- tion department. A reason- able expectation of privacy would exist in one's home, for example, and might include "the top drawer of your dresser . . . but not the garbage left at the curb." For litigants, the court's analysis of social media as evidence will also depend on the circumstances in which a post was obtained, Bernstein says. "If you're set to 'pri- vate,' you will know that only 'friends' can see a post; but if you accept someone as a friend who you don't know, there's no expectation of privacy." Evidence must not be obtained by deceptive practices, of course, such as pretending to be someone else on social media to "friend" someone. L E G A L R E P O R T "… for lawyers, it's not just gathering and preserving records that exist, but making sure there's not new social media coming from [one's own client] about issues at play in the case, unless it's done in a considered fashion." What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES ntitled-3 1 2017-11-01 3:58 PM

• Cover