In the recent decision of a Superior Court Master in Garacci vs.
Ross, the Court dealt with a motion by the Defendant in a personal
injury action to force the Plaintiff to disclose photographs on the
private portion of her Facebook account.
The Plaintiff had been involved in a car accident and claimed
that she had sustained serious and permanent injuries to her left
leg and ankle. At Discovery, she testified that she was now
unable to pursue recreational activities that she previously
enjoyed, including soccer, waterskiing, competitive dancing, and
snowboarding. She admitted that she could still swim, go to
the gym, and travel among other things.
The Defendant found a dozen pictures on public areas of her
Facebook page showing the Plaintiff kneeling on the ground,
climbing a tree, and wrestling a friend to the ground. The
Defendant argued that there must be other similar photographs
showing her engaged in similar activities among her 1,100 private
photographs and asked that all of them be produced.
It appears that the Plaintiff either produced or provided the
Court with access to these photographs and the Court reviewed about
10% of them at random. The Court concluded that none of them
showed the Plaintiff engaged in any significant physical
activity. The Court observed that most of the photographs were
taken from the waist up and only showed her involved in low impact
The Court dismissed the motion on a number of grounds.
Firstly, the Court did not consider the photographs to be
Secondly, given the number of photographs involved, the Court
considered the request that every single one taken since the
accident be produced, to be "merely a high-tech fishing
expedition" which was "not an appropriate or proportional
form of discovery".
This leaves one to wonder as to whether or not the result might
have been different if instead of 1,100 photographs, there were
perhaps two dozen.
Of more significance is the fact that in principle, private
photographs on a Facebook account are not out of bounds in
appropriate cases. If one of the photographs viewed by the
Court had shown the Plaintiff involved in a significant physical
activity, the result might have been different and it is possible
that the Plaintiff would have had to produce all of them. This
result would have been even more likely if the Plaintiff would have
been foolhardy enough to post such photographs on the public
portion of her Facebook account.
This case is yet another useful reminder to litigants to be
extremely careful about how they manage their Facebook or other
social media accounts, both with respect to photographs and texts,
and both with respect to the public and private sections of their
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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