In this personal injury matter (Mohamud v. Juskey 2023 ONSC), the Ontario Superior Court of Justice has ruled on the Defendant's request to disclose the contents of the Plaintiff's social media accounts. The Court has accentuated important considerations concerning privacy, relevance and the scope of social media disclosure.
In brief, the Plaintiff sued the Vehicle driver and the Vehicle owner for damages in the amount of $1.3 million. During the course of the action, the Defendants requested an order compelling the Plaintiff to disclose digital copies of her Facebook and Instagram accounts.
The Defendants argued that the accounts would provide evidence demonstrating the Plaintiff engaging in various activities after the accident. As such, the pictures would be relevant in assessing the Plaintiff's claim for damages.
The Plaintiff resisted the production request and advanced the position that there was minimal probative value to the contents of her social media accounts. She further argued that disclosure of her social medica accounts would lead to substantial prejudice in the form of a significant intrusion on her privacy.
The Defendants argued that the pleadings had placed the Plaintiff's functionality, enjoyment of life and ability to work at issue. Further, the Defendants had obtained several photos from the Plaintiff's public social media capturing the Plaintiff on a beach holiday. As such, the Defendants argued that these photographs demonstrated an ongoing ability to travel and enjoy life.
The Court found that the pictures were relevant to at least one or more issues raised by the pleadings and that it was a reasonable inference that the private social media accounts would contain similar contents to those shared publicly. Therefore, the Court was satisfied that the Plaintiff's social media accounts would likely include additional post-accident photos of the Plaintiff engaging in activities that would be relevant, as per the pleadings.
However, the Court was not satisfied that the entire contents of the Plaintiff's social media accounts were relevant. The Court reiterated that relevance and materiality are determined by the pleadings, the substantive law and the positions taken by the parties. The Court cautioned that it would be overreaching to ask for a blanket order entitling the Defendant to examine the entire contents of the private social media accounts.
As the Court had not seen any of the specific photographs at issue, it could therefore not decide on the relevance of any of the contents of the Plaintiff's social media accounts. Consequently, the Court ordered the Plaintiff to produce an affidavit listing all of the photographs in her possession, control or power, including those posted on her social medica accounts that were relevant to the issues in the proceedings.
The Court advised that only then would it engage in a balancing of the probative value of the records sought against the prejudice that would inure to the party resisting the disclosure.
The field of personal injury continues to evolve, and as such, the power and use of social media has become a prevalent method through which to express, and consequently examine, one's daily activities. However, there is a delicate balance between privacy rights and the relevance of social media content.
When a Plaintiff initiates a personal injury claim, they are emphasizing their physical and mental condition as key aspects of the dispute. Therefore, any information providing insight into the Plaintiff's activities would be relevant in assessing the extent to which the alleged injuries impact their daily life.
However, Defendants should carefully draft disclosure requests seeking only information that is genuinely relevant to the issues in dispute. It would be beneficial for Defendants to narrow any requests for productions with reference to specific time frames and keywords that are directly relevant to the pleadings. The Courts will not take favorably to broad fishing expeditions.
Ultimately, parties should take a thoughtful and narrow approach to social media disclosure requests, supported by the Pleadings and the use of third-party experts. The Court recommended the use of third-party experts to review social media content and redact irrelevant or private information in advance of the content being presented to the Court. This may have the further benefit of ensuring the authenticity of the content, in an age where digital media is easily altered.
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