Don’t make Social Media Posts that undermine your Personal Injury Claim

Posted by Stevenson Whelton LLP
September 07, 2019

 

Impulsive social media posts can get you into trouble and undermine your case, if you’re volved in a civil lawsuit or criminal action. 
 
Defendants in a personal injury claim can request access to your Facebook posts and may introduce your social media posts as evidence, when building their case against you.  And, if you’re claiming that an injury causes you mobility problems and prevents you from performing many activities, but your social media posts tell a different story, your credibility may be severely undermined.  For this reason, if you are in the midst of a personal injury claim, you should never ‘put a good face’ on your circumstances and injury, or try to mask your pain, when updating photos or posts on social media. 
 

In Isacov v. Schwartzberg (2018) a pedestrian sued the driver of a car who allegedly drove over her foot and also caused other injuries. The plaintiff was a ballroom dancer before the accident and claims that her foot injury prevents her from running or wearing heals, she tires easily, has lost interest in many activities, and is devastated by the fact that her ballroom dancing career is over. 

The defendant hired a private investigator who obtained Instagram photos from the plaintiff’s friend and in the photos, the plaintiff appears to be dancing in high heels after being injured.  Consequently, shortly before the trial, the lawyer for the defence requested access to the plaintiff’s social media content from three years before the accident to the trial.  Justice Short asserted that this late request for social media posts is similar to motions for defence medicals and the judge believed that it would be unjust to deny the defendant access to the posts.  Accordingly, Justice Short ordered the plaintiff to, within 10 days, provide copies of her Facebook and Instagram pages for the time period requested by the defendant, and the plaintiff would be given an opportunity to explain any posts entered as defence evidence at the trial.

Before making his decision, Justice Short referred to the following judgements in motor vehicle injury cases where the Court had to decide whether social media posts should be compelled as evidence. These actions generally involved plaintiffs who alleged that the injuries caused by the defendant drivers have caused impairments and have negatively impacted their enjoyment in life.

Stewart v. Kempster (2012) is a civil action for damages arising from a motor vehicle accident that caused multiple physical injuries, psychological injuries and a loss of enjoyment in life for the plaintiff. The defendants in the case brought a motion to compel the plaintiff to produce all her vacation photographs since the accident and all private content on her Facebook account.  Prior to this request, the plaintiff had not produced any of her Facebook photos during the Affidavit for Discovery and she stated that she generally only posted private photos for the benefit of her daughter who lived at some distance.  However, a student-at-law working for the plaintiff examined all the photos and posts on the plaintiff’s Facebook account and filed an affidavit stating that none of the photos show the plaintiff taking part in any athletic activities and also, there are no photos connected to the collision or related to the plaintiff’s injuries.

In response to the defendant’s motion in Stewart, Justice Heeney dismissed the defendant’s motion to force the injured woman to submit her private social media documents.  In this case, there was no evidence to suggest that the plaintiff's Facebook posts contained relevant materials. And, the judge asserted that electronic or digital documents are no different than paper documents, and parties in a lawsuit should not be allowed to search either type of document on nothing more than a fishing expedition that hopes to find evidence that can be held against the other party.

In Murphy v. Perger (2007), Justice Rady ordered the plaintiff in a car accident claim to produce the private photos on their Facebook.  The judge’s decision was based on the fact that the plaintiff had already introduced her pre-accident photographs to show how her injuries impacted her life and she clearly believed these photos to be relevant; therefore, the judge reasoned that the post-accident photographs would be similarly useful and also pass the relevance test.  Further, the plaintiff’s public Facebook site showed that she was involved in a wide variety of activities and the judge believed her private photos would reveal even more relevant information.  Finally, Justice Rady dismissed the argument that the photos would constitute an invasion of the plaintiff’s privacy since the plaintiff already granted 366 people access to her private site.

In Papamichalopoulos v. Greenwood (2018), a plaintiff sued for past and future income loss connected with injuries he suffered in a car accident.  The plaintiff alleged that he experienced stiffness, balance problems and severe pain that reduced his quality of life and lessened his ability to perform all activities and chores.  He further claimed that his injuries caused him to lose several jobs and he would have continued earning a 6-figure salary if he hadn’t been injured.  The plaintiff’s affidavit of documents made no reference to social media pages and the plaintiff refused to review social media pages for relevant content at discovery.  As a result, an investigator for the defendant retrieved public social media pages that showed the plaintiff jet-skiing, lifting his spouse, holding up his 2-year-old son and driving, with no apparent signs of difficulty or discomfort.  The judge found that the photos were relevant and indicated that the plaintiff was strong and active, and as such, opened up questions about the plaintiff’s level of injury.

In Morabito v. Dilorenzo (2011), the defendants in a car accident action moved for an order to demand that the plaintiff produce his Facebook and MySpace pages. During the examination for discovery, the plaintiff admitted that he had Facebook and MySpace accounts but refused to answer whether he had posted photos and argued that his photos were private.  However, the judge ruled that photos taken before and after the accident are relevant to show the impact of the plaintiff’s injuries and whether or not they diminished his enjoyment of life, as he claimed.

In Leduc v. Roman (2009), Justice Brown asserted that an opposing party is not entitled access to all material on a person’s Facebook site simply because the Facebook profile exists, since some of the material may have no relevance to the issues in the personal injury lawsuit.  Also, under the Rules of Civil Procedure Rule 30.06, there must be some evidence that the person possesses relevant materials before a Court can order the person to produce the materials. Typically, evidence of potentially relevant materials emerges when a person is asked about their Facebook site during examination for discovery and, if the person’s answers indicate that their Facebook content may be relevant to the issues in the case, they may be order to produce their Facebook posts.

In Leduc, Justice Brown asserted that since the defendant only learned about the plaintiff’s Facebook profile after discovery, he was unable to examine the plaintiff on these matters.  Therefore, in the interest of trial fairness, Justice Brown found that the defendant must be permitted to cross-examine the plaintiff to find out if any relevant content was posted and exists on his Facebook profile.  And, Justice Brown asserted that, when a plaintiff is claiming substantial damages for loss of enjoyment in life, it would be unfair to deprive the opposing party access to materials that may be relevant to achieve a fair trial.   

As noted by Justice Short in Isacov, “in the present technological environment there is a need to include Facebook and similar on line data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party’s Affidavit of Documents”.  Accordingly,, caselaw decisions for personal injury lawsuits often compel plaintiffs to produce their Facebook posts or other social media materials, particularly when their public Facebook posts or other evidence suggests that there may be relevant information on their private sites pertaining to their level of injury or losses.

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.