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.
