Social Media and the Litigation Process

Nowadays, using social media is a common part of everyday life. We post our dinners on Instagram, family photos on Facebook, and entire job history on Linkedin without thinking twice. Unfortunately, when it comes to personal injury litigation, this may mean your social media profiles become key pieces of evidence. A winning judgement from Philip Pollack, Partner at Pollack Tsimerman, sheds light on this increasingly relevant issue in our modern life.  

In the 2015 case Ghadghoni et al. v 691198 Ontario Inc., Justice O’Connell decided in favour of a motion brought forward by Mr. Pollack. At the time, Mr. Pollack was working as Defence counsel, representing an insurance company. At issue was whether the Plaintiff should be required to produce photos posted to his Facebook profile showing him snowboarding after the subject accident. 

The Plaintiff was claiming significant attendant care costs, arguing he required 24/7 care services for the remainder of his life due to his injuries. The Plaintiff’s main argument was centered around the fact that the Plaintiff was claiming damages for cognitive and psychological injuries and not physical; therefore, he should not be required to produce the requested photo evidence as it was not relevant to the injuries being claimed. 

On the other hand, the Defendant argued that this evidence was entirely relevant, as it would speak to the Plaintiff’s need for full time care. The Defendant argued that if the Plaintiff was able to snowboard alone, he can be independent and would not need the amount of future cost of care being claimed. 

Ultimately, Justice O’Connell decided that the Facebook photo evidence was relevant to the damages being claimed, and therefore needed to be produced by the Plaintiff. Justice O’Connell did specify that the relevance of this evidence must be justified, and a Plaintiff cannot be expected to produce their entire social media history for the Defence to comb through. 

Understandably, the Plaintiff in this case was probably quite surprised to learn that their social media could be used as evidence during litigation. Oftentimes, despite being online, we may view what we post on these accounts as private parts of our lives. However, it is important to know that if deemed relevant, anything you post on social media can become evidence used against you during your personal injury case. It is important to remember this, particularly if you are seeking damages for injuries that contradict with what you are posting. 

Ghadghoni et al. is an important reminder that you must be honest about your injuries and think twice before posting on social media during the litigation process.