A picture is worth a thousand words
Court orders production of Facebook and vacation photographs and associated data.
In the recent case of Fric v Gershman, 2012 BCSC 614, Carfra Lawton LLP partner Giles Deshon successfully obtained an order for production of a plaintiff’s photographs from her Facebook site, and those taken while on vacation. Further, the plaintiff was required to provide the location, date and time the photograph was taken, if available.
In a growing number of personal injury cases digital devices, Facebook and other social networking are yielding background information regarding plaintiffs. The plaintiff’s photographs and associated data are sometimes requested to be produced as relevant documents. Oftentimes, the plaintiff resists such requests.
One of the more difficult tasks we face in defending actions on behalf of insurers is assessing a person’s claim of impairment in work or recreational activities. We have various means through which we make these assessments, including independent medical examinations, obtaining medical, scholastic and occupational records, interviewing witnesses, examinations for discovery and sometimes surveillance. We utilize surveillance in large part to determine if the person is being forthright as to their functional capacity. The private investigator may discover the person engaging in activities inconsistent with their records and their discovery evidence. When a person ‘has their guard down’, there is greater likelihood that they will engage in their everyday activities. Digital devices and social media can also provide a window into such activities.
In the Fric case, the defendant had issued a demand under Rule 7-1(11) of the Supreme Court Civil Rules. The defendant had examined the plaintiff for discovery and found out that the plaintiff had photographs from her participation in a social and physical games weekend one month after the accident, and from various vacations. The plaintiff had refused to provide the photographs, arguing they would not provide evidence of whether the plaintiff was in pain, that the plaintiff’s right to privacy outweighed the probative value of the information sought and that the photographs were no more than “snapshots in time”.
The reasons for judgment analyse and reconcile the authorities in British Columbia and Ontario regarding when photographs and videos may be relevant, and when metadata may be ordered produced, along with how those decisions dovetail with the new document disclosure regime in B.C. The result is a framework for how to secure the necessary evidence and take the appropriate steps to ensure that relevant photographs and data can be ordered produced.
The decision draws a distinction between plaintiffs who allege purely cognitive impairments and those who allege physical impairments. When physical impairments are alleged, the relevance of photographs showing the plaintiff engaged in physical activities is clear. When social withdrawal is alleged, photographs of social occasions can be relevant.
After determining that certain of the photographs sought were relevant, the court applied a test of proportionality and what was required to ensure a fair trial on the merits to order disclosure. As the action involved an articled student who had been in a motor vehicle accident during her first year of law school, which she said resulted in ongoing neck pain, back pain and headaches impacting her studies and work, it was clear that the claim could be significant. The court confirmed a 2011 decision that an order for broader disclosure can be consistent with the proportionality objective in the new rules (Global Pacific Concepts Inc. v Owners of Strata Plan NW 141, 2011 BCSC 1752).
The court explicitly left to the trial judge the balancing of prejudicial effect and probative value to determine admissibility. This was particularly interesting in the context of the court’s decision to relieve the plaintiff from an obligation to include commentary from her Facebook site because the probative value of the information was outweighed by the interest in protecting the privacy of the plaintiff and third parties. The court accepted that privacy rights should not be abridged without cogent reasons to do so. A defendant therefore is required to provide such reasons, but one of the important aspects of this decision is that it specifically allows defendants to cast a wider net at discovery in relation to photographs, and presumably other documents contained on digital devices, than they may be allowed to utilize as exhibits at trial.