The following article is based on a research assignment conducted by Claudette Mukama addressing a client’s obligation to preserve social media evidence. It includes a review of relevant jurisprudence (knowledge of the law) and secondary sources on the matter.
SUMMARY OF FINDINGS
Upon reviewing the relevant jurisprudence and secondary sources, it can be concluded that the client is obligated to preserve social media evidence if they are seeking damages for diminished social life as a result of an accident. This is due to the fact that jurisprudence suggests that basic discovery principles apply to social networking postings in the same way that they apply to other potentially relevant documentation. Specifically, the Ontario Superior Court found in Leduc v Roman that a claimant’s Facebook postings were considered to be “documents” within the context of the Rules of Civil Procedure, and could therefore be ordered produced within the context of litigation.
DISCUSSION
If a plaintiff is seeking damages for one’s diminished social life as a result of an accident, a plaintiff puts his or her social life in issue and cannot then claim his or her social life is private and irrelevant to the case.
Social Media accounts can potentially provide important information and evidence that can arise in personal injury litigation. Three lines of e-discovery cases have developed in personal injury litigation: inference cases, privacy cases and speculation cases. The inference cases are the most relevant to the current matter and will be explained below.
The inference cases
Murphy v. Preger and Leduc v. Roman are both MVA cases that involved motions to compel production of Facebook profiles. These cases held that “a court can infer from the nature of the Facebook service, the likely existence of relevant documents on a limited-access Facebook page.”(see Leduc para 36) Murphy applied this inference because the publicly visible part of the plaintiff’s Facebook page contained relevant information, so it was reasonable to infer that the private portion would also contain relevant information.
The inference is reasonable because a social networking site is likely to contain relevant information about how a plaintiff leads his or her life. In applying this inference, courts have also held that the information contained in a Facebook site may demonstrate a plaintiff’s ability to function in a wide range of social situations, which may be circumstantial evidence from which a trier of fact could draw an inference about a plaintiff’s ability to function generally. (Wice v Dominion of Canada General Insurance Co, 2009 CanLII 36310 at para 12). In addition, as a matter of trial fairness, if a plaintiff has relevant documents in his or her power, possession or control, he or she must produce them and cannot instead rely only on more favourable medical evidence. (Parsniak v Pendanathu, 2011 ONSC 4111 at para 25)
The jurisprudence suggests that basic discovery principles apply to social networking postings like any other document, and parties are obliged to preserve such content in the same way that they have to preserve potentially relevant documentation.
As Justice Timothy Ray stated in Ottenhof v. Kingston (City) Police Services Board [2011] O.J. No. 976, “The pages at a social networking site or internet site including a Facebook page is a document for the purpose of discovery and should be listed in a party’s affidavit of documents, if relevant (‘relating to any matter in issue’).” However, “the mere existence of a Facebook account is insufficient to require its production on discovery.”
Counsel wanting the plaintiff’s social media should consider sending a preservation letter as part of their opening correspondence.
The pages at a social networking site or an Internet site including a Facebook page is a document for the purpose of discovery and should be listed in a party’s affidavit of documents, if relevant (“relating to any matter in issue”). (Ottenhof v. Ross, 2011 ONSC 1430 at para 3)
The evidentiary value of a particular photograph depends on what is actually at issue in the litigation, the content of the photograph, and the circumstances in which it was taken.
Photographs posted on social media accounts may have limited utility for a number of reasons. Firstly, it may not reveal much about a person’s level of physical comfort or discomfort over any meaningful interval of time. Secondly, people often try to portray themselves in a positive light in posed photographs posted on the internet.
However, this does not mean photographs posted on social media sites are always given little or no weight. In personal injury matters, the weight given to photographs from social media would depend on if they contradicted the plaintiff’s previous submissions.
CONCLUSION
In conclusion, as failing to preserve electronic documents can result in their loss, the preservation of social media evidence that pertains to a plaintiff’s diminished social life is vital. If the plaintiff is concerned about social media evidence damaging their credibility, it is important to note that the court only places weight on photographs that would contradict any previous submissions to the court.
AUTHORITIES
JURISPRUDENCE
Wice v Dominion of Canada General Insurance Co, 2009 CanLII 36310
Leduc v Roman, (2009) OJ No 681
Parsniak v Pendanathu, 2011 ONSC 4111 at para 25
Ottenhof v. Ross, 2011 ONSC 1430
Juelfs v. McCue, [2019] B.C.J. No. 1361
Davidson v. 0969446 B.C. Ltd., [2022] I.L.R. para. M-3352
SECONDARY SOURCES
Anna Wong, Social media increasingly relevant to litigation, Vol. 34, No. 26 (November 14, 2014)
David Campbell , #Omg-evidence! The law of discovery of social media in personal injury cases, 33 Adv J No. 2, 29 – 33 (2014)
