Is the pendulum swinging back away from the use of Facebook in litigation?
In Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 4518 (S.C.J.), the defendants sought an ex parte Order for preservation of the plaintiff's Facebook account, followed by a motion for production.
Justice Price refused to make a preservation Order, holding that the defendant had not shown that it would suffer irreparable harm if the Order was not granted. Justice Price assumed that if the plaintiff's Facebook page contained relevant documents it would have been listed in her Affidavit of Documents. With respect, given the relatively recent development of Facebook, I would suggest that many counsel simply do not consider whether their clients have Facebook accounts, and, if so, whether there are relevant documents to be produced. Justice Price held that the mere nature of Facebook as a social networking platform is not evidence that it contains relevant information.
Facebook motions have become a useful tool for defence counsel in many cases and courts were supportive of them in several decisions; however, this decision could signal that courts are no longer as willing to make orders for production as they had been in the past.
A weekly update of cases pertaining to the practice of insurance defence.
Showing posts with label Internet. Show all posts
Showing posts with label Internet. Show all posts
June 2, 2010
November 25, 2009
Facebook in the News
Earlier this week the CBC’s “The National”, with Peter Mansbridge, reported on a young woman in Montreal who has been on leave from her job for the last year and a half after she was diagnosed with major depression. The report indicated that the woman’s disability sick leave benefits were cut off because her insurance company had found photos she had posted on Facebook showing her out nights at her local bar with friends and on holiday to sun destinations.
The use of Facebook as evidence to prove or disprove a claimant’s alleged disabilities and injuries is not new. Several judges in Ontario have granted Orders requiring plaintiffs to produce their Facebook content including photos and/or videos.
In this particular instance we only know the information which was reported in the news. The CBC seemed to suggest that people should be careful about what they post on Facebook and further that it might have been inappropriate for the insurer to use the photos and information the claimant posted on her Facebook pages against her.
The other side of the story, however, is that an insurance company has the right not to make payments to someone who does not qualify for them. This woman was claiming she could no longer work because of major depression and was asking her disability insurer to pay replacement income benefits so she did not have to work.
Disability insurance policies are designed to protect individuals from a loss of income in the event of serious illness or injury. The insurance company has a right and obligation to the shareholders of the insurance company to ensure it is not making payments to fraudulent claimants. I have no idea if the woman in the CBC news story is a legitimate claimant or a fraudster but I do know that there are some fraudulent claimants in society who will allege illness or injury so they can receive compensation and not have to go back to work.
It seems to me that if a person is suffering a mental or psychological disability such that they cannot even work then it seems to make sense that they should be so disabled that they could not go out partying at their local bar or taking sun destination vacations. Isn't that common sense?
I am not an expert in psychology and such an expert would have to say whether this makes sense or not in regard to this particular woman.
No one is suggesting that an injured or disabled person should not be entitled to their long term disability insurance benefits. But a person has to be disabled. It is not enough that a person is a little depressed and does not want to go to work anymore.
If individuals are willing to post photos and videos of themselves on Facebook, shouldn’t insurance companies be able to access that information to weed out fraudulent claims? The result will be reduced premiums for the rest of us.
September 30, 2009
Facebook in Litigation - 2
This is part two of Tara Pollitt's article on Facebook in Ontario litigation.
The Murphy case was followed in Leduc v. Roman,[1] an appeal of a Master’s decision. Justice Brown held that a party who maintains a private Facebook account stands in no different position than one who maintains a publicly accessible profile and to permit a party to hide behind privacy controls on a website designed to share social information is to deprive the other party of material relevant to ensuring a fair trial. In Leduc the defendant had obtained an initial order requiring the plaintiff to preserve the website prior to the balance of the motion being heard. This approach is useful to prevent information from being changed or deleted before the motion can be heard.
Facebook was used recently in a trial decision out of Newfoundland called Terry v. Mullowney.[2] The plaintiff was cross-examined at trial using printouts from his publicly accessible Facebook account. The Court explicitly noted that the material from Facebook showed the plaintiff had a full and active social life and without that evidence he would have been left with a very different view of the plaintiff’s social life. The information was a critical factor in reducing the claim from approximately $1.3 million to $40,000.
[1] [2009] O.J. No. 681 (S.C.J.).
[2] 2009 NLTD 56 (Canlii).
The Murphy case was followed in Leduc v. Roman,[1] an appeal of a Master’s decision. Justice Brown held that a party who maintains a private Facebook account stands in no different position than one who maintains a publicly accessible profile and to permit a party to hide behind privacy controls on a website designed to share social information is to deprive the other party of material relevant to ensuring a fair trial. In Leduc the defendant had obtained an initial order requiring the plaintiff to preserve the website prior to the balance of the motion being heard. This approach is useful to prevent information from being changed or deleted before the motion can be heard.
Facebook was used recently in a trial decision out of Newfoundland called Terry v. Mullowney.[2] The plaintiff was cross-examined at trial using printouts from his publicly accessible Facebook account. The Court explicitly noted that the material from Facebook showed the plaintiff had a full and active social life and without that evidence he would have been left with a very different view of the plaintiff’s social life. The information was a critical factor in reducing the claim from approximately $1.3 million to $40,000.
[1] [2009] O.J. No. 681 (S.C.J.).
[2] 2009 NLTD 56 (Canlii).
September 18, 2009
Facebook in Litigation - 1
CNN recently reported that Facebook now is nearly as large as the population of the United States. There are about 307 million people living the U.S. and Facebook now says it has 300 million users.
Not surprisingly Facebook has now been used in litigation in Ontario. Here is an article by my colleague Tara Pollitt in which plaintiffs have had their credibility checked against their own Facebook webpages.
THE USE OF FACEBOOK IN LITIGATION by Tara Pollitt
Facebook, a social networking website, allows users to share content with other users such as photographs, videos, and by posting messages. A variety of privacy settings are possible, ranging from making one’s site completely open to everyone to restricting access to one’s “friends” – people who are chosen by the user and are permitted to view the user’s information and share their own information. Facebook has quickly become a resource in investigating claims and courts have overwhelmingly approved of its content as being relevant to issues in litigation.
The first reported decision regarding the use of Facebook at trial is Kourtesis v. Jouris[1]. The plaintiff testified that she had little social life post-accident. Photographs the defendant obtained from her publicly accessible Facebook account showed otherwise. In contrast to the evidence the plaintiff and her brother gave about a family trip to Greece where she sat at a café rather than participating in a festival, photographs from Facebook showed her celebrating on her brother’s shoulders. In the trial decision, Justice Browne referred to these photographs in concluding that the plaintiff had an active social life that was not diminished by her injuries. He dismissed the plaintiff’s claim for general damages.
The first reported motion regarding Facebook is Murphy v. Perger.[2] The defendant gained access to a publicly accessible site called the “Jill Murphy Fan Club” and discovered that there was also a private site created by the plaintiff’s sister but over which the plaintiff had control. She had granted access to her webpage to 366 “friends”. Justice Rady allowed the defendant’s motion to obtain production of material on the site, including photographs, holding that the information on the site was relevant as a useful means of assessing the plaintiff’s damages. She rejected the submission that the motion was merely a fishing expedition. She also rejected the argument that the information was a violation of the plaintiff’s right to privacy; the plaintiff could not have had a serious expectation of privacy given that 366 people had already been granted access to the site.
[1] [2007] O.J. No. 2677 (S.C.J.).
[2] [2007] O.J. No. 5511 (S.C.J.).
Not surprisingly Facebook has now been used in litigation in Ontario. Here is an article by my colleague Tara Pollitt in which plaintiffs have had their credibility checked against their own Facebook webpages.
THE USE OF FACEBOOK IN LITIGATION by Tara Pollitt
Facebook, a social networking website, allows users to share content with other users such as photographs, videos, and by posting messages. A variety of privacy settings are possible, ranging from making one’s site completely open to everyone to restricting access to one’s “friends” – people who are chosen by the user and are permitted to view the user’s information and share their own information. Facebook has quickly become a resource in investigating claims and courts have overwhelmingly approved of its content as being relevant to issues in litigation.
The first reported decision regarding the use of Facebook at trial is Kourtesis v. Jouris[1]. The plaintiff testified that she had little social life post-accident. Photographs the defendant obtained from her publicly accessible Facebook account showed otherwise. In contrast to the evidence the plaintiff and her brother gave about a family trip to Greece where she sat at a café rather than participating in a festival, photographs from Facebook showed her celebrating on her brother’s shoulders. In the trial decision, Justice Browne referred to these photographs in concluding that the plaintiff had an active social life that was not diminished by her injuries. He dismissed the plaintiff’s claim for general damages.
The first reported motion regarding Facebook is Murphy v. Perger.[2] The defendant gained access to a publicly accessible site called the “Jill Murphy Fan Club” and discovered that there was also a private site created by the plaintiff’s sister but over which the plaintiff had control. She had granted access to her webpage to 366 “friends”. Justice Rady allowed the defendant’s motion to obtain production of material on the site, including photographs, holding that the information on the site was relevant as a useful means of assessing the plaintiff’s damages. She rejected the submission that the motion was merely a fishing expedition. She also rejected the argument that the information was a violation of the plaintiff’s right to privacy; the plaintiff could not have had a serious expectation of privacy given that 366 people had already been granted access to the site.
[1] [2007] O.J. No. 2677 (S.C.J.).
[2] [2007] O.J. No. 5511 (S.C.J.).
July 11, 2009
On the Internet
Here are some links to a few Canadian legal blogs that I've been reading lately and I've found them to be helpful. Take a look but I add the caveat that I have nothing to do with these websites - so read at your own risk!!
http://www.thecourt.ca/
http://www.slaw.ca/
http://www.cavanaghwilliams.com/blawg/
http://www.thecourt.ca/
http://www.slaw.ca/
http://www.cavanaghwilliams.com/blawg/
Subscribe to:
Posts (Atom)