A recent Alberta decision has significant implications for how private messages on social media platforms may be accessed in litigation. In Terrigno v Petzold, 2025 ABKB 127 (“Terrigno”), the Alberta Court of King’s Bench ordered Bluesky, a social media platform based in the United States, to produce all of the direct messages it held for an unidentified account holder. This case provides helpful guidance about both:

  1. The operation of Rule 5.13 of the Alberta Rules of Court, under which third parties who are not involved in litigation proceedings can be ordered to produce records for the purpose of those proceedings; and
  2. How Rule 5.13 may apply to require the production of digital materials, such as electronic messages.  

Background and procedural history

In 2023, the plaintiff brought an action against the defendant and an unknown defendant, “John Doe,” for defamation and harassment relating to online activities on Bluesky, a social media platform similar to X / Twitter. The basis for the action was the fact that the plaintiff was the target of online comments made by various alias accounts including “@theobius.”

In September of 2023, Justice M. R. Gaston found the defendant to have committed torts against the plaintiff and granted judgment in favour of the plaintiff accordingly.[1]

The action against John Doe continued. In response to an order for disclosure granted by the Court in December, 2024, Bluesky provided the plaintiff with the “@theobius” account holder’s email address. The plaintiff then contacted the holder at that email address, to which the account holder responded: “I have received your court documents. I do not object to the release of my direct messages as long as no one is seeking any money from me.”[2] However, when Bluesky followed up to obtain more formal consent from the account holder for the disclosure of the direct messages via a consent form, the email address was no longer active.[3]    

As a result, the plaintiff brought an application pursuant to Rule 5.13 in order to compel Bluesky to produce all direct messages from “@theobius.” Rule 5.13 states, in part:

  • 5.13(1)  On application, and after notice of the application is served on the person affected by it, the Court may order a person who is not a party to produce a record at a specified date, time and place if
    1. the record is under the control of that person,
    2. there is reason to believe that the record is relevant and material, and
    3. the person who has control of the record might be required to produce it at trial.

Decision to order production of account holder’s private messages

In his decision, Applications Judge J.R. Farrington cited the Alberta Court of Appeal decision in CNOOC Petroleum North America ULC v 801 Seventh Inc.,[4] and confirmed that where disclosure is sought under Rule 5.13, the test to be applied requires the plaintiff to show that:[5]

  1. the document exists;
  2. it is under the control of the non-party;
  3. it is relevant and material;
  4. it cannot be obtained from a party; and
  5. it is appropriate to order the non-party to produce the record.

The Court found that the 5-part test under Rule 5.13 had been met in this case: [6]

  1. “@theobius” acknowledged that the records exist in the response email;
  2. Bluesky holds the direct messages of all its users, including “@theobius;”
  3. the direct messages were relevant and material as the online activities in evidence showed that “@theobius” participated in some capacity in communications for which judgment against Petzold had already been granted;
  4. the records could not be obtained from a party because the identity of “@theobius” was not known; and
  5. it was appropriate to order Bluesky to produce the direct messages as section 20(e) of the Personal Information Protection Act, SA 2003, c P-6.5 (“PIPA”) allows an organization to disclose an individual’s personal information without their consent if it is required by an order of the court or a rule of court that relates to the production of information.

In reaching this conclusion, the Court rejected Bluesky’s argument that because it is a United States entity, United States law ought to apply, and it should not be compelled to contravene applicable American statutes such as the Electronic Communications Privacy Act, 18 U.S.C. 2510 and the Stored Communications Act, 18 U.S.C. 121.[7]

One of the issues with Bluesky’s argument was the fact that foreign law ordinarily needs to be proven by an affidavit from a qualified expert. Although Bluesky did file an affidavit in support of this foreign law argument, it was sworn by a Canadian paralegal and contained hearsay comments from Bluesky’s United States lawyer regarding the impugned United States law. If a United States lawyer wants to provide their interpretation of United States law, they would normally do so with their own affidavit that would then be subject to cross-examination. As such, the Court found that United States law had not been properly proven.[8] Ultimately, however, it was not necessary to prove any American law, because the Court found that the law of Alberta – specifically, PIPA – applied to the case, since Bluesky was available in Canada and the online comments were specifically directed to, and about, an Alberta resident (the plaintiff).

In the end, the Court granted the application and ordered Bluesky to produce the direct messages.  In doing so, the Court noted that there was no reason to withhold production of records in an electronic form that relate to tortious conduct, particularly when the same records would be readily producible if they were in another form (i.e., a letter).[9] The Court also remarked that although the request for all direct messages was broad, there was no trustworthy screening mechanism for materiality and relevance available because the account holder decided not to participate in the application. As such, there was no other option besides producing all of the direct messages from the “@theobius” account.[10]  

Practical takeaways

There are a number of helpful reminders and practical takeaways flowing from the decision in Terrigno:

  1. Third-party records are fair game under Rule 5.13: Records in the possession of third parties can be ordered to be produced in connection with Alberta litigation under Rule 5.13. The scope of the records included extends to electronic records and, in particular, electronic communications.
  2. Foreign entities may still be required to comply: If the third-party record-holder is a foreign entity, but they provide services in Canada and the litigation concerns an Alberta resident, that third party may not be able to successfully resist disclosure of the records they hold on the basis that such disclosure is contrary to foreign law.
  3. Production may be broad in scope: The scope of production ordered against a third-party record-holder may be sweeping and broad, particularly if there is no adverse party (as in this case since the account holder behind “@theobius” did not participate) to argue about the relevance and materiality of the impugned electronic communications.
  4. Implications for social media and anonymity: Rule 5.13 may have wide-reaching implications in the modern social media age. This is particularly the case with social media platforms where users rely on the apparent anonymity of nondescript usernames or the ability to delete messages. As this case suggests, where there is a reasonable basis to conclude that electronic communications are relevant and material to ongoing litigation in Alberta, so long as the account name and the platform are known, there is a potential means of having messages associated with the account produced by the social media provider.

Miller Thomson can assist you with all your litigation needs. If your business needs guidance regarding record production or efficient dispute resolution, please contact a member of Miller Thomson’s Commercial Litigation Group.

[1] Terrigno at para 3.

[2] Ibid at para 12.

[3] Ibid at para 13.

[4] CNOOC Petroleum North America ULC v 801 Seventh Inc., 2023 ABCA 97 [“CNOOC”].

[5] Terrigno, supra note 1at para 8, citing CNOOC, supra note 4at para 27.

[6] Ibid at para 15.

[7] Ibid at paras 18-19.

[8] Ibid at para 19.

[9] Ibid at para 23.

[10] Ibid at para 6.