Personal Injury

Courts moving toward test for social media production in PI cases

By AdvocateDaily.com Staff

A recent decision shows that courts are moving toward articulating a test for social media production in personal injury matters, but there still isn’t much consistency when it comes to the factors being considered, London personal injury lawyer Maia Bent tells Law Times.

In the case, the article notes, the Ontario Superior Court Master ordered the plaintiff — a former professional ballroom dancer — to turn over social media photos to the defendant shortly before trial after a private investigator became aware of the accounts.

Law Times reports that the plaintiff sued for general damages of $1 million plus a further $2 million in special damages when she claimed the injuries she sustained as a result of a 2012 accident — in which her right foot was run over by the defendant’s vehicle — ended her plans to resume her career.

However, a private investigator hired by the defendant’s insurer uncovered photographs that appear to show the plaintiff socializing and wearing high heels on social media accounts belonging to another person, says the article.

The defendant subsequently requested production of the plaintiff’s social media accounts from three years pre-accident to the present, despite a looming trial date.

The plaintiff’s lawyer refused the production request at such a late stage, says the Law Times, but the Master noted that it would be “manifestly unjust” to deny the defendant’s motion, given the plaintiff’s “failure to include in her affidavit of documents to any reference to online data that the plaintiff has not asserted does not exist.”

“I am satisfied that in the present technological environment there is a need to include Facebook and similar online data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party’s Affidavit of Documents,” wrote the Master.

As Bent tells Law Times, one of the more interesting steps forward in the decision is the suggestion that social media data should be outlined in a plaintiff’s affidavit of documents.

Ultimately, she adds, the ruling is a “natural progression” from the growing body of case law in the area.

“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.

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