Plaintiffs must deal with social media evidence early in litigation

Plaintiffs’ counsel must assess a client’s social media profiles at an early stage following a recent Superior Court judgment, Ottawa personal injury lawyer Najma Rashid .

The judge in the case, which involved a former professional ballroom dancer’s $3-million lawsuit over injuries suffered when a vehicle ran over her foot, ordered the woman to turn over Facebook and Instagram photos to the defendant, even though the matter had already been set down for trial.

It would be manifestly unjust to deny the motion, the judge wrote, given the plaintiff’s failure “to include in her affidavit of documents any reference to online data.”

In addition, the judge commented that he was satisfied “that in the present technological environment there is a need to include Facebook and similar online data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party’s Affidavit of Documents.”

That’s much earlier than the issue typically comes up in litigation, says Rashid, partner with Howard Yegendorf & Associates LLP.

“I was a little surprised by the specific ruling that plaintiffs now have an obligation to indicate social media data in their affidavits of documents,” she says. “As a result, plaintiffs’ counsel will need to examine our clients’ social media accounts and assess whether or not evidence exists and whether production may be required.”

According to Rashid, social media data “is becoming more and more of an issue in the litigation landscape,” as defendants seek access to postings and pictures that could sabotage a plaintiff’s case.

Still, she says there remain some limits on the number of private postings plaintiffs will have to turn over to the other side during litigation.

“It’s certainly not a blanket authorization for defence counsel to have access to their social media profiles,” says Rashid, who was not involved in the matter and comments generally. “The test will be whether the data is relevant.”

According to the decision, the woman’s case began in 2012 when a driver ran over her foot. She claimed the injuries had ruined her career plans by leaving her unable to run or wear high heels.

But a private investigator hired by the defendant’s insurer discovered photos on another person’s Facebook and Instagram accounts that appeared to contradict her story since they showed her wearing heels. Comments below the posts also suggested the plaintiff may operate her own accounts on the social media sites, so the defendant moved at the last minute to be given access to them.

The judge agreed to the request, giving the woman 10 days to hand over copies of any photos she had on her Facebook and Instagram accounts.

“If they are nonexistent then there will be no content that could harm the plaintiff’s case. However, if there is photographic evidence that may potentially undermine the Plaintiff’s claim, there will be an opportunity to provide an explanation at trial,” the judge concluded.

But he declined to award costs for the motion, adding that the need for it could have been avoided “if appropriate questions were asked at the discovery of the plaintiff or prior to the mediation.”