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Facebook photos found relevant to an auto accident injury case, but not status updates or wall posts

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Photos posted to a plaintiff's Facebook and MySpace pages are relevant to litigation surrounding his motor vehicle accident injuries, but Facebook status updates and postings to other people's walls do not necessarily meet the relevance test, the Ontario Superior Court of Justice has ruled.

In a brief endorsement, the court found the plaintiff, Jeffrey Morabito, could not refuse to answer questions about photos of him that were posted on his Facebook and MySpace pages. Morabito claimed his injuries had caused him loss of enjoyment of life.

Morabito took the position that his Facebook and MySpace photos were private and refused to answer any questions about them in an examination for discovery. But the court ordered Morabito, who sued for injury in a collision, to re-attend an examination for discovery to face questions about and produce his social network photos.

"Photographs of the plaintiff, taken before and after the accident, are relevant," the court ruled. "Photographs after the accident show the effect of the injuries and whether and to what extent they affect his enjoyment of life. Photographs taken before the accident are relevant for comparison."

But while photos were definitely relevant, the content of Facebook status updates and other posts to his wall did not meet the same test.

The court noted the plaintiff relied on the 2009 decision in Leduc v. Roman, submitting that mere proof of existence of a Facebook profile does not entitle the opposing party access to all material placed on the site. Only documents that are relevant to issues in the action should be produced, the court agreed, and often this existence will emerge from questions asked at examination for discovery.

"The defendant has not established the relevance of the plaintiff's status updates, or the messages posted by others on his wall," the court found. "I consider the parties to have had mixed success."

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