Personal Injury lawyers may want to change their Examination for Discovery strategy based on the following new cases: Stewart v. Kempster, 2012 ONSC 7236 and Garacci v. Ross, 2013 ONSC 562. Both cases suggest that plaintiffs may not have to disclose their private Facebook photographs even if there is a claim for pain and suffering or loss of enjoyment.
The Stewart case noted that the disclosure standard has increased from the “semblance of relevance” test to the stricter “relevance” test. Here, the defendant brought a motion for the plaintiff to produce private Facebook photographs on the grounds that “all vacation photographs are relevant because the plaintiff . . . put her enjoyment of life and participation in social and recreational activities in issue.” The Court held that “(a)n injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A (private Facebook) photograph of such an activity has no probative value.” The Court dismissed the defendant’s motion.
In the Garacci case, the plaintiff alleged that she suffered a left leg injury including a left leg fracture. At discovery, she stated she could not do many former activities but did not claim “total disability” or “that the accident has completely prevented her from participating in certain athletic and social activities.” The defendant brought a motion for the plaintiff to produce 1,100 private Facebook photographs. The Defendant argued that that the private Facebook photographs should be disclosed because there were 12 publicly viewable photographs showing the plaintiff “socializing with friends, having dinner and drinks, kneeling on the ground, climbing a tree and wrestling a friend to the ground.” Master R.A. Muir ruled that no public Facebook photograph “actually show(ed) (the Plaintiff) engaged in any kind of significant physical activity.” So, Master R.A. Muir dismissed the defendant’s motion.
Plaintiff lawyers may use these new victim-friendly cases to “refuse” or “take under advisement” any defendants’ requests for victims’ private Facebook photographs.