I recently filed a post about a request for production of the contents of a party’s Facebook page in the context of a personal injury claim. It was only a matter of time before someone came up with the idea of circumventing this procedure by obtaining the same information by other means. In an April 2009 Advisory Opinion, the Philadelphia Bar Association was asked for guidance in the following circumstances: a lawyer proposed to have a third person approach a hostile witness in a case the lawyer was involved in; the third party would try to become a “friend” of the witness with access to the witness’s Facebook and My Space pages; if access was granted, the third party would promptly funnel information back to the lawyer for possible use against the opposing party and witness during the course of the litigation.

The Bar Association refused to give its blessing to this course of action, saying that it was deceitful and contrary to the lawyer’s professional ethics. The Opinion contains useful insights:

“Turning to the ethical substance of the inquiry, the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.

The fact that the inquirer asserts he does not know if the witness would permit access to him if he simply asked in forthright fashion does not remove the deception. The inquirer could test that by simply asking the witness forthrightly for access. That would not be deceptive and would of course be permissible. Plainly, the reason for not doing so is that the inquirer is not sure that she will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset. In short, in the Committee’s view, the possibility that the deception might not be necessary to obtain access does not excuse it.”

The lawyer’s argument that the proposed course of action was no different than the practice of videotaping a party to litigation was given short shrift:

“The inquirer has suggested that his proposed conduct is similar to the common — and ethical — practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. The Committee disagrees. In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.”

On May 14, 2009, the Court of Appeal for Ontario released a decision in a case that I was involved in on behalf of the plaintiffs. The decision, Silvestri v. Hardy, 2009 ONCA 400, concerned an action brought in Ontario as result of a car accident in Michigan. The plaintiff resides in Hamilton and has sought medical attention in Ontario due to the injuries she sustained in the accident. The defendant claims that the accident was caused by an unidentified driver who he was seeking to avoid when he collided with the plaintiff. Given this position, the plaintiff was required to take action against her own insurer pursuant to the unidentified motorist provisions in the insurance policy. This part of the claim must proceed in Ontario.

The question at issue on the appeal was whether the action should be heard in the Ontario courts or whether Michigan was the more appropriate forum for the resolution of the dispute. A Superior Court judge had ruled that the action should be heard in Michigan, as there were a number of witnesses to the accident who are resident there, and Michigan law would govern the action. The Court of Appeal reversed the decision and held that the action should proceed in Ontario.

The Court noted that the number of witnesses for each side were evenly divided, but that if the action were tried in Michigan there would be the possibility of inconsistent verdicts given that the claim by the plaintiff against her own insurer would have to proceed in Ontario. As a result, the overriding goals of efficiency and justice which underlie the system of conflicts of law mandated that the action proceed in Ontario rather than Michigan.

While the Court did not have to consider the issue, it can be said that statutory provisions in Ontario make the forum of the dispute of lesser importance in car accident cases that occur in North America. Section 243(1) of the Insurance Act provides that automobile insurance provided for under the Act applies to the use or operation of a vehicle in Canada or the United States. Section 252(1) of the Act provides that in the case of liability arising out of the use or operation of a vehicle in Canada or the United States, the insurer is liable up to the minimum limits prescribed for in that province, territory or jurisdiction if those limits are higher than the limits in the policy, and the insured appoints the insurer to appear and defend an action in any province or territory of Canada or any jurisdiction in the United States. Section 57(1) of the Statutory Accident Benefits Schedule provides that the insurer is required to pay accident benefits properly payable if the accident occurred in another province or territory of Canada or a jurisdiction in the United States.

In light of these provisions, it can readily be seen that, insofar as the rights and obligations of the insured person and the insurer are concerned, there is little difference if a car accident occurs in Ontario, Canada or Ontario, California.

In an influential decision from 1993 known as the Ikarian Reefer, the English Queens Bench held that expert witnesses owe their primary duty to the Court instead of the party who may have retained their services. In the decision, the Court made the following important points:

(1) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form and content by the exigencies of litigation;
(2) An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his or her expertise. An expert should never assume the role of an advocate;
(3) An expert witness should state the facts or assumptions on which the opinion is based, and should not omit to consider facts which may detract from the opinion.

On January 1, 2010, as part of an ambitious attempt to streamline the civil litigation system in Ontario, these obligations will be given effect in the Rules of Civil Procedure. The rules will provide that the duty of an expert witness is to provide fair, objective, non-partisan opinion evidence related only to matters within their area of expertise, and that this duty prevails over any other obligation of the expert witness. A certificate confirming that these duties are understood will have to be signed by the expert witness.

It is to be hoped that these welcome amendments will result in fewer “battles of the experts” to which our litigation system has become accustomed. In cases where such assistance is needed, the Courts rely heavily on expert witnesses to provide opinions on matters outside the expertise of the parties to the dispute. If those opinions are tainted by bias, there can be a failure of justice.