Building Obstacles?

The widespread use of online social networking tools has resulted in a potential gold mine of favourable evidence for defendants in personal injury cases. A plaintiff’s Facebook account, in particular, may contain a great deal of evidence relevant to the plaintiff’s claim for loss of enjoyment of life and the true extent of the plaintiff’s damages.

Under Rule 30.02 of the Rules of Civil Procedure, a plaintiff is obliged to produce all documents relevant to his or her claim, which Ontario courts have found to include photographs and information posted to the plaintiff’s Facebook account.

If a failure to comply with this production obligation is suspected, a defendant may bring a motion pursuant to Rule 30.06 requesting an order for production of the content of the plaintiff’s Facebook account.

The burden rests on the defendant on such motions to demonstrate that potentially relevant undisclosed documents likely exist on the account. In circumstances in which the plaintiff’s Facebook account is entirely private or offers only limited public content, this may present a significant obstacle to the motion, as there may be limited evidence available to establish the likely existence of relevant undisclosed documents.

BALANCING OF PRIVACY CONSIDERATIONS

The case law dealing with production of Facebook content must balance a defendant’s interest in production of information relevant to the litigation against a plaintiff’s privacy interests. Courts have noted that a plaintiff’s right to privacy is not absolute, and have attempted to set parameters on reasonable expectations concerning privacy of Facebook content.

In this regard, the number of “friends” with access to the plaintiff’s private Facebook account will be taken into account by the court on a production motion. In the 2007 case, Murphy v. Perger, the fact that the plaintiff allowed 366 “friends” to have access to her private content led Justice Helen Rady of Ontario’s Superior Court of Justice to conclude the plaintiff did not hold a serious expectation of privacy, and to order production of her entire Facebook account to the defence.

Accordingly, if the plaintiff has what is considered by the court to be a significant number of “friends,” it appears that privacy concerns alone would be unlikely to prevent the production of his or her Facebook profile.

The most often-cited case on the issue of the production of a plaintiff’s Facebook account is the 2009 case, Leduc v. Roman, also by Ontario’s superior court.

In that case, John Leduc and Janice Roman were involved in a motor vehicle accident in Lindsay, Ontario. Leduc claimed he suffered a loss of enjoyment of life as a result of injuries caused by Roman’s negligent driving. At his examination for discovery, the defence failed to question Leduc about the existence of a Facebook account or its contents.

Defence counsel subsequently discovered that Leduc kept a Facebook account, but the only publicly available information on it was his name and a profile picture. The defence moved for several production-related orders, including the preservation of all information contained in Leduc’s Facebook account, production of all account information not publicly available, and the production of a supplementary affidavit of documents.

The defendant’s motion for production was denied by Master Ronald Dash. Master Dash found the defendant had not met the evidentiary burden in the motion because (i) the defendant had only speculated as to the likely existence of relevant information on the plaintiff’s Facebook account and (ii) the plaintiff’s profile picture was “neither relevant nor indicative of what may be on the site.” The defence appealed.

On appeal, Justice David Brown found that Master Dash had erred in two respects, namely failing to apply the principle from Murphy v. Perger that a court can infer from the nature of the Facebook service the likely existence of relevant documents on a limited-access Facebook profile, and dismissing the request to produce without allowing the defendant the opportunity to cross-examine Leduc on his supplementary affidavit of documents regarding his Facebook account’s content. No production order was made, but the defendant was granted leave to cross-examine Leduc on his supplementary affidavit of documents.

A number of important principles arise from Leduc, including the following:

• A party who maintains a private or limited-access Facebook account “stands in no different position than one who sets up a publicly available profile” and, therefore, is obliged to identify and produce any relevant postings on Facebook. This positive obligation includes any posts demonstrating activities and enjoyment of life, “even if it is contrary to his interests” in the action.

• A Rule 30.06 motion requires evidence, not mere speculation, that potentially relevant undisclosed documents exist. However, “the level of proof required by the court should take into account the fact that one party has access to the documents and the other does not.”

• Evidence in support of a production order may include answers to questions at examination for discovery revealing that a party’s Facebook account may contain content related to issues in the matter.

• While “mere proof of the existence of a Facebook profile does not entitle a party to gain access to all material placed on the site,” the court may infer the likely existence of relevant documents on the limited-access portion of a profile from the plaintiff’s publicly available Facebook content, and the nature of the Facebook service itself.

COURT RESPONSE POST-LEDUC

Amendments to the Rules of Civil Procedure in 2010 required the application of the stricter “relevance” test on production motions, rather than the previous “semblance of relevance” test applied in Leduc.

The amendments did not present an obstacle to production of Facebook content in the 2010 case of Fragione v. VanDongen, arising out of injuries sustained by the plaintiff in two motor vehicle accidents. The court in Fragione made a finding, based on the publicly available photographs and information on the plaintiff’s Facebook account, that the privately accessed portion of his Facebook account likely contained similar, relevant documents.

The court further found the plaintiff’s argument that he had an expectation of privacy in connection with the information on his privately accessed account, which was available to approximately 200 “friends,” to be a “preposterous assertion,” and stated there would be little or no invasion of the plaintiff’s privacy if the plaintiff was ordered to produce all portions of his Facebook site.

Accordingly, the court ordered the plaintiff to preserve and produce all material on his account, including any postings, correspondence and photographs up to and including the date of the order.

In two more recent cases, Stewart v. Kempster from 2012 and Garacci v. Ross from 2013, the defence brought Rule 30.06 motions for orders that the plaintiff produce all relevant content on the private portions of the plaintiff’s Facebook accounts.

In Stewart, the evidence adduced by the defence in support of the motion included answers to questions at examination for discovery indicating that the plaintiff’s Facebook account might contain post-injury photographs from a vacation to Mexico.

In Garacci, the defence relied on publicly available photographs on the plaintiff’s Facebook profile showing the plaintiff climbing a tree and wrestling a friend to the ground, after sustaining the injuries giving rise to the claim.

In each case, in opposing the motion, the plaintiffs provided not only affidavit evidence indicating a review of the content of the plaintiff’s Facebook profile revealed no content relevant to the matter, but also the private photographs themselves in a sealed envelope, handed up to the court.

Upon reviewing the evidence before them, the courts in each case we re not persuaded that any relevant documents from the plaintiff’s Facebook account had been omitted from the plaintiffs’ affidavits of documents and, thus, the motions were dismissed.

Importantly, the court in Stewart characterized a Rule 30.06 motion as being driven “by the evidence, and the inferences to be drawn, or not, from the evidence” and, thus, considered reference to other authorities (including Leduc) in coming to a decision unnecessary. The court also adopted this approach in Garacci.

The shift away from use of the Leduc principles may be the result of the fact that the evidence provided by the plaintiffs in Stewart and Garacci afforded the court an opportunity to actually review the material sought by the defendants in order to determine whether it was, in fact, relevant to the litigation.

RELEVANCE OF FACEBOOK CONTENT IN PERSONAL INJURY CASES

In a personal injury action, a plaintiff seeks, among other damages, general damages, for pain and suffering, and for the loss of the plaintiff’s enjoyment of life. Given this, the court’s findings in both Stewart and Garacci that the photographs in question were not relevant to the litigation is surprising.

In particular, in Stewart, the court found that only photographs or content on a plaintiff’s Facebook profile depicting “significant physical activity” – such as rock climbing or water-skiing – could be considered relevant to demonstrating the extent of the plaintiff’s physical limitations. Astoundingly, the court found photographs of the plaintiff on vacation in Mexico of no relevance to the issue of whether or not the plaintiff had sustained a loss of enjoyment of life.

In Stewart, the court went so far as to note the following: “An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.”

With respect, an individual’s ability to travel and enjoy oneself is surely relevant to the degree of that individual’s loss of enjoyment of life. Of concern is that the courts, in reaction to the 2010 narrowing of the relevance test under Rule 30.06, are now going too far in restricting production of what, on a straightforward analysis, is information clearly of relevance to the litigation.

While courts must, of course, balance to some extent the plaintiff’s privacy interests, the plaintiff’s expectations in this regard must be reasonable. After all, it is the plaintiff who puts his or her enjoyment of life at issue by suing the defendant for personal injury damages.

A more careful consideration of what is “relevant” under the amended rules must be applied on motions for production of Facebook content.