A recent decision about whether a plaintiff must produce Facebook posts to the defendant illustrates the complex law developing around social media evidence in personal injury claims.

Admissible evidence in personal injury claims

As part of a personal injury claim, all parties are required to disclose any documents in their possession or control that are relevant to the legal issues raised in the claim. “Documents” can include any form of recording information, including photographs and other media. For example, where a plaintiff has made claims about ongoing impairment resulting from a broken leg, they may be required to disclose photographs from a family skiing trip taken after the accident.

Legal claims are very long and expensive to undertake, which can be extremely harmful to injured plaintiffs. As a matter progresses towards trial, settlement funds are delayed and legal costs increase. The disclosure rules enable every party to know the evidence available, and make fair offers to settle matters before they proceed further than necessary.

As social media use has become increasingly ubiquitous, defendants have begun requesting copies of a plaintiff’s Facebook or Instagram posts. Where plaintiffs are claiming that they are unable to participate in their social and recreational activities as the result of their injuries, these posts are arguably relevant as they may describe events or include images that can shed invaluable light on a plaintiff’s day-to-day functioning.

Privacy may protect certain social media evidence from disclosure

In Jones v. I.F. Propco, the defendant sought disclosure of the injured plaintiff’s entire social media posts and comments from five years prior to her accident. The plaintiff agreed to produce her public feed from two years before the accident.

Each request for documents is considered in context, and the motion judge here reviewed several other decisions about social media posts before refusing the defendant’s request. Ultimately, the public posts did not reveal anything of relevance, and the defence had no evidence to suggest that the private posts would be relevant either. Accordingly, the request was considered a “fishing expedition” and properly refused.

Although the judge did not consider the issue of privacy, the judgment raises the question about balancing a plaintiff’s interest in maintaining privacy over the portions of their online life shared only with close friends or family, with the potential value to the case, and the interests of justice, in disclosing potentially relevant social media evidence.

Legal advice for injured plaintiffs about social media evidence and their claim

If you, or a loved one, have been seriously injured in an accident, it may feel that there are an overwhelming number of things to keep track of, on top of your physical recovery. If you are unable to work, the financial burden may be an added challenge. At Fireman Daya & Co., we offer supportive legal guidance and advice, backed by over four decades of experience bringing personal injury claims on behalf of victims.

We are experienced personal injury lawyers that understand these developing areas of law, and throughout the course of your claim we will always have time to answer your questions about social media evidence, and any other issues.

Contact us online, or by calling our office at 416-967-9100. We offer free consultations to new clients.

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