Increasingly, digital documentation such as private Facebook photographs is requested by defendants in the hope of challenging the plaintiff’s evidence of their injuries, in a personal injury claim. However, private Facebook photographs are no different than private paper documentation, such as personal letters, and a defendant has no more right to demand disclosure of private digital documentation than they would have to a plaintiff’s private letters or photos, based on mere speculation that they may find damaging evidence against a plaintiff.
The defendant in a recent civil action, Garacci v. Ross, brought a motion to order the plaintiff to produce about 1100 photographs which were on the private portion of her Facebook account and profile pages, arguing that the photos are relevant to the issue in the action. The plaintiff disagreed that the photos were relevant and also asserted that the defendant’s motion amounts to an invasion of her privacy solely on the grounds of challenging her credibility.
This motion is connected with a lawsuit brought by the plaintiff after she was injured in a motor vehicle accident caused by the defendant. The plaintiff was walking along the side of a road in the town of Courtice, a small community east of Oshawa, when she was hit from behind by a vehicle driven by the defendant. As a result, she claims she suffered serious and permanent injury to her left leg, including a fractured ankle. The plaintiff’s action sought damages for various losses, including general damages for her loss of enjoyment in life and amenities.
During her examination for discovery before the trial, the plaintiff stated that her injuries resulted in lost or diminished enjoyment in such activities as soccer, snowboarding, waterskiing and competitive dancing. Although the plaintiff does not allege that she is totally disabled or no longer able to participate in any social activities, there has been a reduction in her enjoyment of many activities.
The defendant argued that the plaintiff’s private photographs are relevant to the plaintiff’s alleged loss of enjoyment of life and the amount of damages she is seeking. The defendant noted that there were a number of photographs on public areas of Facebook that show the plaintiff socializing with friends, climbing a tree and wrestling a friend to the ground. The defendant surmised that if these types of photographs are available on the public areas, there are likely photographs showing the plaintiff participating in similar activities among her many private photographs.
The motions judge acknowledged that there may be more such photographs, but Justice Muir had difficulty with the defendant’s assumption that the public photographs don’t have relevance to the issues to be resolved in the trial. Rather, the judge believed that none of the public photographs depict activities that are physically taxing; they simply show the plaintiff enjoying herself and socializing with her friends, and are not inconsistent with her evidence at discovery. Also, the plaintiff gave evidence that all of the 1100 photographs were reviewed by a law clerk and were found to be consistent with the public photographs shown in evidence by the defendant. Justice Muir reviewed about 10 per cent of the private Facebook photographs, chosen at random, and found that none of these depicted the plaintiff engaging in significant activities.
Motions of the type brought in Garacci are subject to a stricter ‘relevance’ test than the ‘semblance of relevance’ test that has been applied in the past. The motions judge cited Stewart v. Kempster (2012), where the court concluded that a defendant’s request to search the plaintiff’s private Facebook photos is on par with searching a person’s filing cabinet or private letters in the hopes of finding written correspondence or a photo that is inconsistent with the plaintiff’s other evidence. The fact that these private photographs exist in a digital form does not mean that they should be made available as evidence in the trial any more than paper documents, such as photo albums or letters to family and friends. Justice Muir suggested that the defendant’s motion is undistinguishable with a request that the plaintiff produce every photograph taken of her since she was injured in the accident, so that the defendant can rummage through them in the hope that something useful to his case will turn up. The judge stated that this “is an extremely broad request and in my view amounts to nothing more than a high-tech fishing expedition”.
Justice Muir dismissed the defendant’s motion on the grounds that the requested photographs are not relevant and do not need to be produced. Accordingly, the defendant was ordered to pay the plaintiff’s costs for the action.
If you were injured in a car accident or other event caused by another person's negligence, you may be entitled to compensation for any financial losses as well as pain and suffering damages, that resulted from your injury. Call an experienced Scarborough car accident lawyer for an honest assessment of your case and strong representation against the negligent party.