April 30th, 2012
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the production of private social media data in the context of a personal injury claim.
In today’s case (Fric v. Gershman) the Plaintiff sued for damages for injuries sustained in a 2008 collision. The Plaintiff apparently suffered from “chronic severe headaches and soft-tissue injuries” following the crash. The Plaintiff, who was a first year law school student at the time of the crash, plead damages for various losses including diminished earning capacity.
ICBC sought production of the Plaintiff’s entire Facebook profile, vacation photos and metadata related to digital photos in her possession. Master Bouck held that while some of this relief was too broad, relevant photos need to be disclosed and ordered production accordingly. In doing so the Court provided the following reasons:
 After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.
 The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).
 In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.
 The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.
 How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.
 Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.
 Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident.
 I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.
 In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.
 Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.
 Nonetheless, the order sought by the defendants is too broad…
 In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:
1. participating in the December 2008 Law Games; and
2. on a vacation taken since November 18, 2008.
 The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.
 Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…
 The plaintiff is not obliged to include commentary from the Facebook web?site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.
 Costs of the application will be to the defendants in the cause.