Photo credit: Kelvinsong/Wikimedia Commons
Maia Bent, President of the Ontario Trial Lawyers Association (OTLA), recently authored an interesting column for the Huffington Post outlining the growing role metadata – especially relating to email and social media – plays in personal injury cases in Canada.
“Over the last few years,” Bent writes, “as sharing of personal information on social media has become more ubiquitous, many personal injury cases in Ontario are being decided on evidence gathered from plaintiffs’ social media accounts, which provide ‘metadata’ creating a time and location stamp of a user’s online activity.”
For example, employers who have been accused of wrongful dismissal may use the plaintiff’s email records to back up their decision to terminate, just as an insurance company might present social media records to invalidate the claimed extent of an accident victim’s injuries.
The 2015 British Columbia Supreme Court case of Sarah Tambasso (which we discuss here) provides a vivid example of social media evidence hurting a plaintiff’s claims. Ms. Tambasso sought hundreds of thousands of dollars in damages, but was eventually denied her claim based on Facebook posts which showed her performing karaoke and joining her friends at parties.
Some personal injury lawyers have raised the question of privacy in relation to social media activity. In her column, Bent brings up Fragione v Vandongen et al., in which the defendant “sought access to the entire contents of the plaintiff’s personal computer, including any material on his Facebook account.” The plaintiff claimed a breach of privacy, but was ordered to produce the material.
Indeed, the question of the discoverability of digital evidence seems to be largely answered. According to a September 2015 article on CanadianLawyerMag.com, the courts have come to understand “that the point of social media is the erosion of privacy” and “have largely adopted the view that privacy will not trump discoverability of evidence as long as there isn’t an impact on third-party interests.”
With that in mind, the more pressing question may be whether metadata evidence is “trustworthy and reliable,” as Bent puts it. Social media is often used to present the best image of yourself to your friends and family, not necessarily to expose the realistic hardships of day-to-day living.
Bent cites Merpaw v Hyde as an example where metadata was not accepted as evidence against a plaintiff who claimed “a reduced enjoyment of life, incapacitation from employment, chronic fatigue and depression.” In dismissing the defence’s discovery motion for the plaintiff’s Facebook account, Judge Rick Leroy cited “minimal probative value in this data to the issues of enjoyment,” and said he was “unclear on the inferences that can be drawn from usage analysis.”
Plaintiffs in personal injury lawsuits should be extremely careful when using social media. Indeed, some personal injury lawyers will ask that clients refrain from using Twitter, Facebook, Instagram and other social networks during the legal process. Even deleted or hidden social media posts can be retrieved by a savvy investigator, and the related metadata can often describe how, when, and where a social media activity happened. All of this information can be detrimental to your claim.
If you or a member of your family has been injured, contact Neinstein Personal Injury Lawyers for a free, no-obligation consultation. Neinstein will help you make sense of your injuries and assess the validity of your claim.
Greg Neinstein
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