Written by: John McLeish and Lindsay Charles
Posting photographs, documents, and information on Facebook, Instagram, and Twitter can only cause harm to an individual involved with a personal injury case. Why? Photos can be taken out of context. Information can be overly optimistic about an injured person’s condition. Both photos and information posted on Facebook only tell a small part of the story. They usually convey an inaccurate picture of the injured person’s ability to function.
Insurance defence lawyers want to see the photos and information. Requests for the photos and information are now part of standard requests of most defence lawyers on examinations for discovery.
Here is a series of questions that the insurance defence lawyer may ask the Plaintiff at his examination for discovery to establish that there is relevant information on the injured person’s social media web pages.
- Are you on Facebook?
- Do you have any other social media sites or avenues?
- On those social media sites, do you tell people what you are doing, or make comments about your life?
- Do you post photographs of what you are doing?
- Have you posted any photographs on Facebook, Instagram or Twitter in the last two to three years?
- In that time frame have you posted photographs of what you are doing, where you are doing it, and your social activities?
- When you tweet and are on Facebook, do you talk about your jobs, and your work, and school?
If the Plaintiff has answered ‘yes’ to the majority of these questions, the defence lawyer will ask to produce the entries that deal with the Plaintiff’s job, school, social activities, and how he spends his time.
If Plaintiff’s counsel refuses, defence counsel will bring a motion to compel production of the photos and documents. Plaintiff’s lawyers need to know how to handle the motion.
The Plaintiff’s lawyers should not automatically produce the Plaintiff’s entire Facebook page for these reasons.
- A motion brought under Rule 06 requires evidence, as opposed to speculation, that potentially undisclosed information exists[1].
- The mere existence of a Facebook profile does not entitle a party to gain access to all material on the site. Some materials may be relevant to the litigation and some materials may not be.[2]
- The onus is on the defendant to demonstrate that the Plaintiff has relevant materials on a Facebook page before the Court can order that the materials be disclosed.[3]
- The examination for discovery is the opportunity for the defendants to determine the relevance of the contents of a Plaintiff’s Facebook account.[4]
- The Courts have generally looked at the party’s public Facebook profile to determine if relevant material exists in the private portion. In cases where a party had posted relevant photographs on a publicly-accessible Facebook profile showing that the party engaged in physical activities, the Courts have deemed it reasonable to infer that similar photographs exist on the private portion of the account.[5]
- There may be relevance to the Plaintiff’s private photographs that did show her engaged in some physical activity. However, if Plaintiff’s counsel reviews the photographs and there are no photographs of that nature, the photographs do not have any real relevance to the issue in the action and should not be produced.[6]
Based on the Garacci v Ross decision, if the defence lawyer brings a motion for the production of social media evidence, the Plaintiff’s counsel should prepare an Affidavit summarizing what each photograph depicts on their Facebook profile. If the matter continues to the motion, Plaintiff’s counsel should then present the Affidavit and a sealed envelope with the Facebook photographs for the Judge or Master to determine the relevance of the posts.
Even when an injured person is being totally honest, posting Facebook photos at his or her best time can be very misleading and can give a Judge or Jury the wrong impression.
Once a photograph or post is published to a social media site, the Plaintiff’s lawyer can never tell the injured person to remove the photograph or post. It is much wiser for Plaintiff’s counsel, upon been retained, to tell the injured person to not post any photographs or information to any social media website.
[1] Leduc v Roman, 2009 DLR (4th) 353 at para 14, 2009 CarswellOnt 843 (WL Canada), (ON SCJ) Brown J.
[2] Leduc v Roman, 2009 DLR (4th) 353 at para 33, 2009 CarswellOnt 843 (WL Canada), (ON SCJ) Brown J; Schuster v Royal & Sun Alliance Insurance Co of Canada, 120091 78 CCL1 (4th) 216 at para 33, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.
[3] Leduc v Roman, 2009 DLR (4th) 353 at para 15, 2009 CarswellOnt 843 (WI.. Canada), (ON SCJ) Brown J; Schuster v Royal & Sun Alliance Insurance Co of Canada, 120091 78 CCL1 (4th) 216 at para 34, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.
[4] Schuster v Royal & Sun Alliance Insurance Co of Canada, [2009] 78 CCLI (4th) 216 at paras 40, 41, 43, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.
[5] Stewart v. Kempster, 2012 ONSC 7236 at paras 16, 17 CPC (7th) 188, Heeney RSJ; Schuster v Royal & Sun Alliance Insurance Co of Canada, (2009] 78 CCLI (4th) 216 at para 37, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.
[6] Garacci v Ross, 2013 ONSC 5627 at para 7, 232 ACWS (3d) 341, Master RA Muir
