Plaintiffs should loosen their privacy expectations as courts fumble their way toward a test for social media production in personal injury litigation, according to a London, Ont. personal injury lawyer.
Plaintiffs should loosen their privacy expectations as courts fumble their way toward a test for social media production in personal injury litigation, according to a London, Ont. personal injury lawyer.
In Isacov v. Schwartzberg, Ontario Superior Court Master Donald Short ordered the plaintiff, a former professional ballroom dancer, to turn over Facebook and Instagram photos to the defendant on the eve of trial in her multi-million-dollar personal injury case after a private investigator became aware of the accounts at a late stage.
The master declined to order costs of the motion for production, suggesting the plaintiff should have mentioned the accounts earlier and that the defendants had also missed opportunities to ask about them.
“I am satisfied that 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,” wrote Short, later adding that the defendant’s failure to seek such documentation earlier “has added expenses to both sides that could have been avoided if appropriate questions were asked at the discovery of the plaintiff or prior to the mediation.”
Maia Bent, a London-based partner in the personal injury practice group at Lerners LLP, says the ruling is a “natural progression” from the growing body of case law in the area, much of which was recounted in Short’s decision.
“The courts are moving toward articulating some kind of test for social media production, but there still isn’t a great deal of consistency in the factors considered or how they are weighted,” says Bent, a former president of the Ontario Trial Lawyers Association. She says one of the more interesting steps forward in Short’s decision is the suggestion that social media data should be outlined in a plaintiff’s affidavit of documents.
According to Short’s decision, Maya Isacov launched her action following a 2012 accident in which her right foot was run over by the defendant’s vehicle. The former professional dancer sued for general damages of $1 million plus a further $2 million in special damages, claiming the injures she sustained crushed her plans to resume her career, since she was rendered unable to run or wear high heels.
During an assessment with a psychologist, Short’s decision says Isacov also reported losing interest in going out with friends or shopping, preferring instead to “stay home and watch something that would get my mind off everything.” However, a private investigator hired by the defendant’s insurer uncovered photographs in May of this year that appear to show Isacov socializing and wearing high heels on Facebook and Instagram accounts belonging to another person.
Comments underneath some of the posts also alluded to Isacov’s name, prompting the defendant to request production of all her social media accounts from three years pre-accident up to the present, despite a looming trial date then scheduled for November.
Without admitting or denying the existence of social media accounts controlled by Isacov, her lawyer refused the production request at such a late stage. However, Short found it would be “manifestly unjust” to deny the defendant’s motion, given Isacov’s “failure to include in her affidavit of documents to any reference to on line data that the plaintiff has not asserted does not exist.”
Lianne Sharvit, who acted for the defendant, says the facts of the case were fairly unique but weighted in her client’s favour.
“We had compelling evidence to suggest there could be further social media content out there that may be helpful,” says Sharvit, a Toronto insurance defence lawyer with Devry Smith Frank LLP, who also has experience acting for plaintiffs in personal injury actions.
“The lesson for plaintiffs is that you need to be careful, because anything you put on social media can be used against you in litigation,” Sharvit adds.
Mariam Moktar, a civil litigator with Lenczner Slaght Royce Smith Griffin LLP, says the decision has lessons for both sides of the personal injury bar.
“At the outset of litigation, lawyers for both sides should be asking pointed questions of the plaintiffs to decipher whether or not they maintain social media accounts and, if so, whether they contain anything relevant,” she says. “The mere existence of a Facebook account is insufficient to require production, but I think counsel, in explaining to their clients what is to be included in the affidavit of documents, needs to ask more targeted questions about what pictures are on there.”
