BC Court requires active personal injury plaintiff to divulge Facebook photos

David Elder & Robert Mysicka -

A recent decision by the British Columbia Supreme Court has led to yet another case of “Facebook Remorse” for a Plaintiff with an active social media presence.

The case also further confirms the trend in Canadian civil courts to require disclosure of “private” social media postings where relevant to the case at hand.

In Fric v. Gersham the Plaintiff, who is a recent law school graduate, is claiming damages resulting from injuries suffered in a motor vehicle collision that occurred in 2008. The action, which is scheduled to proceed to trial in May, 2013, involves claims by the Plaintiff of loss and damages, including pain and suffering, loss of amenities of life, past and future loss of earning capacity, and other damages alleged to have been caused by the Defendants, who were involved in the motor vehicle accident with the Plaintiff.

The Defendants in the case brought an application for an order requiring the Plaintiff to produce a copy of the Plaintiff’s Facebook page, including a number of photographs which allegedly show the Plaintiff on vacation, hiking, scuba diving, wakeboarding and participating in the Law Games, a social and sports event held annually for students enrolled in law schools across Canada.  

The Defendants submitted that the photographs are relevant to the Plaintiff’s claim for ongoing physical impairment and loss of amenities of life, and might contradict the Plaintiff’s claim that she has suffered from ongoing physical injury and loss of amenities of life as a result of the accident. 

In opposing the application, the Plaintiff claimed that the Defendant’s request was overly broad and not substantiated by the evidence. The Plaintiff noted that she was not totally disabled by the accident, and has continued to function at school, work and socially, albeit with pain and fatigue. She argued that the photographs would not help refute her claim, as they reveal only snapshots in time and without a proper context. Finally, she argued that her right to privacy outweighed the probative value of the information sought to be disclosed.

Master Bouck, who presided over the Defendants’ pre-trial application for disclosure of the photographs and metadata, considered two issues in her ruling: (i) whether the Facebook photographs and metadata might be material and relevant to the Plaintiff’s claim; and (ii) whether the Plaintiff’s right to privacy might override disclosure obligations to the Defendants.  

Citing a number of prior cases in BC and Ontario, Master Bouck paid particular attention to the issue of “physical impairment” and found that when such impairment is being alleged, in distinction to cognitive impairment, “the relevancy of photographs showing the plaintiff engaged in activities that require some physical effort seems rather clear.”

Master Bouck concluded that since the Plaintiff claims that her diminished capacity was the result of physical injuries, her Facebook photograph, which show her engaging in a variety of sporting or physical recreational activities, and related metadata (including time, date and caption information) are relevant in discovering the extent of her damages since the accident, including claims of physical impairment and social withdrawal.  Accordingly, he required this material to be included in an amended list of documents accessible to the Defendants.

Although some of the material was found to be relevant to the case at hand, Master Bouck attempted to balance the privacy concerns of the Plaintiff and her Facebook friends with the interests of the Defendants by limiting disclosure to the most relevant material and allowing for the protection of other private postings and the postings of third parties.

In this regard, Master Bouck narrowed the required disclosure of the Plaintiff’s huge photo collection, including those posted on Facebook, to only those relating to the Law Games held and vacations taken after the accident giving rise to the claim. She also declined to order the Plaintiff disclose any comments posted on her Facebook site, finding that the probative value of such commentary was outweighed by the competing interest of protecting the private thoughts of the Plaintiff and third parties.   Finally, she allowed the photographs to be edited in order to protect other individuals who may appear in them.

It is worth noting that the photographs and metadata were ordered to be disclosed only as part of the pre-trial discovery process. The Plaintiff will still be entitled to argue that the disclosed material should be inadmissible at trial on the basis that the prejudicial effect outweighs the probative value.

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