No longer "Friends": The Production of Facebook Profiles in Personal Injury Actions

Facebook's mission is to give people the power to share and make the world more open and connected. Facebook users routinely record their experiences by posting pictures, writing wall posts, updating their statuses, and checking into different locations. In personal injury actions, in which plaintiffs regularly plead that they have suffered diminished enjoyment of their social and recreational lives, it comes as no surprise that the production of Facebook profiles has become a prevalent issue.

Murphy v Preger 1and Leduc v Roman2 were the first cases involving motions to compel the production of Facebook profiles.3 In both of these motor vehicle accident cases, an inference was made that there were likely relevant documents on a limited-access Facebook page, due to the nature of Facebook itself. In Murphy, this inference was made since the public portion of the plaintiff's profile contained relevant information, so it was reasonable to infer that the private portion would as well. In Leduc, the appellate court reversed a master's decision to deny a motion to compel a plaintiff to produce his entire Facebook profile. However, Justice Brown noted that in addition to proof of the existence of a Facebook profile, there had to be some evidence of relevant content in order to compel production. In this case, he granted leave to the defendant to cross-examine the plaintiff on his supplementary affidavit of documents about the nature of the content he posted on his Facebook profile.

These two cases were decided before the 2010 amendments to the Rules of Civil Procedure. The "semblance of relevance" test has been replaced with a stricter test of "relevance" and the phrase "relating to any matter in issue" has been changed to "relevant to any matter in issue".4

Following these changes to the Rules, the mere existence of a Facebook profile does not automatically entitle a moving party access to the material on the profile, and the inference of relevance is not necessarily made. Garacci v Ross5 is a 2013 case in which the Ontario Superior Court denied the defendant's motion for an order to compel the production of 1,100 of the plaintiff's private Facebook photographs. In this case, the plaintiff was struck by a motor vehicle and claimed that the accident prevented her from pursuing athletic activities that she had previously enjoyed. The master reviewed a 10 percent sample of the 1,100 photos at issue, and denied production since none of the 10 percent depicted her engaging in the kind of significant physical activity that she claimed to be unable to perform. He emphasized the new, stricter "relevance" test and that restraint must be exercised in the discovery process. In his view, the defendant's request amounted to "nothing more than a high tech fishing expedition." 6

With the stricter discovery rules, courts will no longer simply make an inference of relevance due to the nature of Facebook. The scope of discovery has been narrowed, which signals that defendants seeking to compel the production of a plaintiff's Facebook page have a higher hurdle to overcome.

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1 [2007] OJ No 5511 (SC)(QL).

2 [2009] OJ No 681 (QL).

3 David Campell, "#Omg-evidence! The law of discovery of social media in personal injury cases", (2014) 33 Adv J No. 2, 29 - 33.

4 Rules of Civil Procedure, RRO 1990, Reg 194, Rules 30, 31 and 76.

5 2013 ONSC 5627.

6 Ibid at para 9.

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