If you are suing someone who caused you an injury, the defendant in your lawsuit is entitled to obtain information about you that may be relevant to your claim and to their defence. This includes any documents that relate to the amount of losses that you allege you have suffered. ‘Relevance’ to the case is the key issue in determining whether your private information must be disclosed.
Under the Rules of Civil Procedure, each party in a lawsuit (the plaintiff and defendant) have an obligation to provide “every document relating to any matter in issue in an action that is or has been in the possession, control or power” of the party and they must disclose the document unless they can claim privilege over the document. The obligation to disclose relevant information is an important aspect of our civil system, and both the plaintiff and defendant must swear an Affidavit identifying their relevant documents.
The Affidavit of Documents for a plaintiff (or defendant) contains all of the evidence in their possession. The list of documents in the Affidavit is divided into the following Schedules: A) documents that are in the plaintiff’s possession and they are going to reveal; B) documents they don’t wish to reveal because they are confidential or privileged; and C) documents that may be relevant to the case but are no longer in the plaintiff’s possession.
If one of the parties – the plaintiff or the defendant - believes that the opposing side has not complied with their obligation to disclose, they can bring a motion asking that the other party produces the missing document. And, if the court finds evidence that a relevant document may have been omitted from their Affidavit of Documents (and the information is not privileged), the court may order that the party be cross-examined on their Affidavit and/or may order that the document be disclosed or produced for inspection. However, a court needs real evidence before ordering a plaintiff to produce a particular document and won’t do so based only on the defendant’s speculation that the plaintiff likely withheld relevant information (Leduc v. Roman, 2009).
Personal information that is commonly required
Medical information, including your medical history, pre-existing conditions and current medical health, is key information that relates directly to the severity of injury you suffered as a result of the accident and this information must be fully shared with the defendant.
Defendants are also entitled to your employment history and records, as well as your academic records. Further, if police were involved in your case (for example, as a result of a car accident injury or an assault), the defendants may request police records and/or accident reports relating to the incident that caused your injury.
It’s become increasingly common for defendants to request that a plaintiff produce their social media posts and pages. Also, the defendant may make a request that you not delete any posts made during a particular period, particularly beginning immediately after the accident. If your posts show that you appear to be having a good time and/or engaged in physical activities, a defendant may use this information to argue that your injuries are not as serious as you are claiming.
Judges in personal injury lawsuits don’t automatically order plaintiffs to make all their social media posts available to a defendant; rather, the judge will weigh whether the information in the posts is relevant to the injuries being alleged. However, as indicated in a review of personal injury cases involving social media evidence, judges often find that the plaintiff’s social media posts are relevant to the alleged severity of injury and the amount of damages being claimed.
In some cases, such as Stewart v. Kempster (2012), the judge found that the plaintiff’s social media posts are not relevant and therefore, the plaintiff was not obligated to produce these documents for the defendant. In Stewart, a woman injured in car accident sought damages from the at fault driver (the defendant) and the defendant motioned that she produce her private Facebook photos. However, the judge dismissed the defendant’s request and relied on an affidavit attesting that the woman’s Facebook photos were unrelated to her injuries and did not show her participating in any strenuous physical activities.
Nemchin v. Green (2017) is another car accident lawsuit in which a defendant requested that the plaintiff produce her social media documents; Specifically, the defendant requested that the plaintiff re-instate all her social media pages after her Facebook page had been deactivated. In this case, the judge ruled that the plaintiff was obligated to reactivate her Facebook pages for only 8 hours and the defendant could save any posts they find relevant during this limited period.
Your personal injury lawyer can best advise you on the types of personal documents that you will be expected to produce during your injury claim. If you were injured and believe you have grounds for compensation, talk to an experienced ILO personal injury lawyer to learn about your legal rights and what you can expect in the claims process.