Plaintiffs in personal injury actions may be ordered to submit their private Facebook posts or other social media materials, if a judge finds that the plaintiff’s posts may be relevant to the issues being decided. In personal injury litigation where a plaintiff is seeking damages for impairments that they allege have caused a reduced ability to function and a loss of enjoyment in life, the plaintiff’s online photos are commonly found to be relevant to the plaintiff’s claim of injury. And, the judge in a recent pedestrian accident lawsuit, Isacov v. Schwartzberg (2018), asserted that relevant Facebook and other social media data should be included in each party’s Affidavit of Documents.
However, plaintiffs are not required to produce their online documents indiscriminately or in every case, as indicated in the following civil actions.
Nemchin v. Green (2017) is a personal injury lawsuit arising from a car accident, that resulted in the plaintiff being awarded $725,000 in damages. The plaintiff in this action suffered PTSD and major depression as a result of the accident, and the judge concluded that her psychological injuries were serious and permanent and met the threshold for pain and suffering damages.
During trial preparation, the defendant noticed that the plaintiff’s Facebook page had been deactivated and certain content from her social media accounts were deleted, so the defendant requested that all her social media content and accounts be re-instated. In response, the plaintiff agreed to reactivate her Facebook page for 8 hours only, during which time the defendant could have access to, and save, any posts, pages and photos they believe are relevant. However, this came with a provision that the plaintiff be given a copy of any information that is retrieved and also included in the Affidavit of Documents.
Through an oversight or for another reason, the plaintiff was not provided a copy of the 20 posts the defendant wished to submit as evidence, before the cross-examination, which prevented the plaintiff from considering the information before testifying or allowing her medical witnesses to consider and respond to the posts. The Court ruled that the defendant’s lack of disclosure of this potential evidence was prejudicial to the plaintiff and the social media documents could therefore not be introduced as evidence.
Stewart v. Kempster (2012) is a civil action that arose after a car accident victim suffered multiple physical injuries and psychological injuries, and a loss of enjoyment in life. The injured woman (the plaintiff) did not include any Facebook materials in her Affidavit for Discovery and stated that she only updated private photos on Facebook for her daughter who lived in B.C. However, the plaintiff did submit an affidavit in which a student-at-law attested that she had reviewed all of the plaintiff’s Facebook photos and found that the plaintiff did not engage in any physically demanding activities and none of the photos were related to the plaintiff’s injuries. The defendants in this case motioned for an order requiring the plaintiff to deliver all of her private Facebook posts and any post-accident vacation photographs, but as there were no grounds to suggest that the plaintiff’s private Facebook photos would reveal anything relevant to the case, the judge dismissed the defendant’s motion.
Notwithstanding the above decisions, our Courts commonly rule that the plaintiff in a personal injury action must comply with a motion to produce their social media materials, particularly when other evidence, such as public Facebook pages, suggest that the plaintiff's online documents are pertinent to the question of severity of injury.
In Isacov v. Schwartzberg (2018), Justice Short ruled that the plaintiff in a pedestrian accident must produce copes of her Facebook and Instagram pages. The judge’s decision was made after the defendant’s private investigator obtained post-accident Instagram photos from a friend of the plaintiff’s, which depicted the plaintiff dancing in high heels. These photos conflicted with the plaintiff’s claim that she was no longer able to wear heals or dance competitively after the defendant allegedly drove over her foot.
In Murphy v. Perger (2007), Justice Rady found that the plaintiff, who was injured in a motor vehicle accident, must produce her private Facebook photos for the period after the accident. The plaintiff had previously submitted Facebook photos from before the accident to demonstrate the impact of the injuries on her life, and the judge believed that the plaintiff’s post-accident photos would be similarly relevant. The judge also stated that because the plaintiff had granted access to 366 people on her private site, it was difficult to argue that producing the photos for the Court was an invasion of her privacy.
In Papamichalopoulos v. Greenwood (2018), Justice Abrams ruled that the plaintiff’s social media pages before and after the motor vehicle accident are relevant to the severity of injury the plaintiff alleged he is suffering. The judge made this ruling after the plaintiff’s lawyer refused, during discovery, to review the plaintiff’s social media posts for relevant content. Also, the defendant’s investigator found social media pages that displayed the plaintiff involved in highly physical activities, such as holding up his son and riding a jet-ski with no visible discomfort, that challenged the plaintiff’s claims. Justice Abrams referred to Leduc v. Roman (2009) where the Court stated that it’s safe to assume that the content on a person’s private profile will be similar to that on their publicly-accessible profile, and this may provide reasons to compel the person to produce their private social media posts.
Morabito v. Dilorenzo (2011) is another case in which the judge approved the defendant’s motion to compel the plaintiff to produce their private Facebook and MySpace pages, on the basis that the pre- and post-accident photos were relevant with regards to how the plaintiff’s injuries impacted his life. This judgement occurred after the plaintiff admitted to having these social media accounts during his examination for discovery, but refused to answer questions on his photos.
As indicated by the judgement in Stewart v. Kempster, judges in personal injury actions apply the ‘relevance test’ to online documents before compelling a person to produce their documents. But, simply having a Facebook profile is generally not sufficient reason to allow a defendant and the Court to access a plaintiff's online materials. However, when plaintiffs claim that their injuries have impacted their interpersonal and recreational activities and have caused a reduced quality of life, a defendant (who may be found liable for substantial damages depending on the outcome of the case) is strongly motivated to argue that the plaintiff’s Facebook posts are relevant to the issue of damages.