The Facts
In this car accident personal injury case the defendant sought production of photos, videos, screen shots and social media posts of the claimant. The ICBC’s special investigators conducted an investigation into the claimant’s social media presence, and while the claimant has made all of her accounts private, the investigator was able to locate six social media posts that, the defendants argue, show an inconsistency with the claims of injury. The defendant wanted all photos or videos depicting the claimant:
a) participating in outdoor activities;
b) socializing;
c) engaging in physical exercise, including classes;
d) attending social gatherings in public; or
e) on vacation,
In this case, the claimant made significant claims. The expert reports were based on, in addition to the expert’s own assessment, personal reporting on matters such as the nature of her ability to socialize and participate in various activities. Specifically, the claimant’s evidence suggested that she did not go out as much, that she left early when she did go out, that she had been unable to go to dinners with friends without leaving early and taking food home, that she did not walk the dogs as much and that while she could occasionally go out, all she wanted to do was go home, noting that even being at a park could be difficult because of the noise.(Travis v. Bittner, 2022 BCSC 839)
The Law for Disclosure of Social Media Documents
In the case of Bouck, Fric v. Gershman, 2012 BCSC 614, the court considered a claim of an articled student who had continued to work, completed her education but made claims that her future capacity was diminished. The defendants there also sought a broad scope of disclosure of her “complete Facebook profile including all photos and metadata”. In considering the various decisions on this issue, the court noted at para. 26 as to how the differing results in the case law that have considered these issues could be reconciled as follows:
…the court draws a distinction between personal photographs that might assist the defence in refuting the plaintiff’s claim to physical as opposed to cognitive impairment. When physical impairment is alleged, the relevancy of photographs showing the plaintiff engaged in activities that require some physical effort seems rather clear.
Psychological injuries such as those claimed in this matter fall into the same category, in the courts view, as physical injuries as referenced above.
In both cases, there is a claimed impairment of an ability to participate in activities. Notably in Fric, like the present case, the claimant had also testified that the accident‑related injuries negatively impacted her social life and ability to perform certain sports and recreational activities without pain or at all, which was continuing unresolved. Master Bouck made the following conclusions at para. 39:
1. Pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the SCCR and will usually also govern issues concerning the initial disclosure obligations of a party under Rule7‑1 if those obligations are challenged under Rule 7‑1(10);
2. The removal of the Peruvian Guano 11QVD55 train of inquiry test of relevance will generally require a defendant to provide some evidence to support an application for additional documents whether demand is made under Rule 7‑1(11) or Rule 7‑1(18);
3. Privacy rights should not be abridged without cogent reasons to do so;
4. An automobile accident does not amount to an implied waiver of privacy rights;
5. The scope of document discovery and oral discovery is now not the same. However, the scope of examination for discovery under the present Rules remains unchanged and is very broad; see also Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556, and More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166.
The Decision
The judge ultimately agreed with the defendant that the claimant ought to disclose some of the documents being sought, but the scope was overly broad. The application amounted to a fishing expedition or an “opening of the file cabinet”. Accordingly, the court ordered that the claimant amend her list of documents to include photographs and videos which were in her possession or control in which she is depicted to be:
a) participating in an organized exercise class;
b) engaging in any sporting activities, including motorized sports; or
c) on vacation.