Your Private Facebook Photos May be Ordered Disclosed in Your Lawsuit

By Chris Trueman, Associate at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

The Supreme Court of British Columbia recently ruled on an ICBC application concerning the production of private social media data in the context of a personal injury claim.   In the case of Fric v, Gershman, 2012 BCSC 614, the plaintiff was injured in a November 2008 motor vehicle accident and she sued for damages, claiming the accident left her with chronic pain and a diminished ability to enjoy life.  

The plaintiff had a Facebook site with 890 “friends”, 759 digital photos and one video.  Additionally, she had 12,000 other personal photos in her possession.  The plaintiff’s Facebook site shared only some information publicly, which did not include any photographs.  She was a first year law student at the University of Victoria at the time of the accident and some of her Facebook photos were taken at her December 2008 attendance at Law Games, where law school students from across Canada competed in athletic, social and academic challenges.  The plaintiff claimed her participation at Law Games was limited due to her injuries.

The defendants applied to the Court for an order to disclose the plaintiff's full Facebook account, including all of her vacation and Law Games photos, to determine whether the accident had had the detrimental effect on her life that she had claimed.  The Court stopped short of disclosing the plaintiff's entire Facebook profile, but did order the production of the plaintiff’s Law Games photos and any vacation photos taken post-accident.

An excerpt of the Court’s decision follows:

[54]     After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.

[55]     The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).

[56]     In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.

[57]     The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58]     How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.

[59]     Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.

[60]     Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident.

[61]     I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.

[62]     In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.

[63]     Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.

[64]     Nonetheless, the order sought by the defendants is too broad.

[65]     The relief sought in paragraph 1 of the notice of application amounts to the “search of the filing cabinet” frowned upon in Desgagne v. Yuen, supra.

[66]     The defence is somewhat hampered in identifying relevant photographs since the plaintiff declined to answer questions regarding the Facebook content at her examination for discovery. The affidavit filed by the plaintiff does not offer any assistance in this regard.

[67]     One option open to the court is to order that the plaintiff re-attend an examination to answer questions about the photographs. However, that step might simply add a layer of unnecessary costs when the kind of photographs to be produced can be determined from evidence already gathered. Furthermore, the defendants did not request this relief in their notice of application.

[68]     Photographs of Ms. Fric’s activities at the Law Games are relevant to the claim of physical impairment and social withdrawal.

[69]     Ms. Fric says that she participated in some activities while on vacations in the last several years but also that these activities were at times restricted or abandoned. Again, the defence should be given an opportunity to discover whether the claim for reduced physical capacity is accurate.

[70]     In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:

1.  participating in the December 2008 Law Games; and

2.  on a vacation taken since November 18, 2008.

[71]     The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.

[72]     Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…

[73]     The amended list is to be provided to the defence by no later than June 30, 2012, unless otherwise agreed.

[74]     It is impossible to say whether this exercise will require the plaintiff to review all of her 12,000 photographs, but it seems doubtful. Only the plaintiff knows how many photographs in her possession fall within the defined categories. As with any document disclosure, plaintiff’s counsel will be involved in the review and no doubt provide any necessary guidance.

[75]     The plaintiff is not obliged to include commentary from the Facebook web‑site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.

[76]     Costs of the application will be to the defendants in the cause.

Please careful with what you post to social media websites.  Even if you mark your photos “private” or restrict access to only your closest friends, those photos can still be ordered disclosed and may be used to challenge your claim in court.  Photographs rarely tell the full story.  People generally don't take photos when they are feeling pain or making modifications to their routine.