Anyone who has been injured or involved in a motor vehicle accident and has a claim for accident benefits, or disability benefits should be aware that their private lives will be assessed during litigation. It’s important to know that Facebook accounts may be used as a method for surveillance. In two recent decisions, the court has confirmed that preservation and production of Facebook accounts will be required during litigation.
In the recent decision, Anderson v. 45859 Ontario Ltd.(2010) ONSC 6585, the court ordered preservation of a Facebook profile. In that case, Dana Anderson was kicked by a horse and sustained serious injuries to her face and head. As a teacher, Dana was insured under a group disability policy of insurance for long term disability benefits. Following her Examination for Discovery, the Defendant brought a motion to preserve and produce all documents contained on her Facebook site. The court ordered that all parts of her Facebook profile wall and postings, whether public or private, shall be preserved. Any portions of her profile and postings relevant to the litigation were also ordered to be produced.
In Frangione v. Vandongen (2010) ONSC 2823, Antonio Frangione was involved in two motor vehicle accidents between April 4, 2002 and August 11, 2003. He suffered a number of injuries including a traumatic brain injury, neck and back pain. Antonio gave evidence that he could spend no longer than 15 minutes at a time sitting on his computer. The Defendant brought a motion to access Antonio’s entire computer hard drive, including his Facebook site. The court found that information contained on Antonio’s computer, including information that could be contained on his Facebook, were relevant to assess Antonio’s damages.
Antonio’s lawyers argued that given the abundance of medical evidence, the computer and Facebook documents were unnecessary and irrelevant. The court found:
“[It would be unjust] to exclude a body of evidence such as computer documents including photographs and communications such as are typically found on a person’s Facebook site merely because there is another more credible body of evidence, such as medical reports”.
In this case, Antonio’s right to privacy was outweighed by the Defendant’s request for Facebook evidence.
At Neinstein and Associates LLP, we are often asked, “what if I limit my facebook profile and implement high security settings?” Unfortunately, potential plaintiffs should be aware that a court can infer the existence of relevant documents on a limited-access Facebook profile. Production and preservation may still be ordered on a limited profile.
Should you have any questions about your case please feel free to call our office for more information.
