The Latest on Facebook Photographs and the Litigation Process

In the recent decision of a Superior Court Master in Garacci vs. Ross, the Court dealt with a motion by the Defendant in a personal injury action to force the Plaintiff to disclose photographs on the private portion of her Facebook account.

The Plaintiff had been involved in a car accident and claimed that she had sustained serious and permanent injuries to her left leg and ankle. At Discovery, she testified that she was now unable to pursue recreational activities that she previously enjoyed, including soccer, waterskiing, competitive dancing, and snowboarding. She admitted that she could still swim, go to the gym, and travel among other things.

The Defendant found a dozen pictures on public areas of her Facebook page showing the Plaintiff kneeling on the ground, climbing a tree, and wrestling a friend to the ground. The Defendant argued that there must be other similar photographs showing her engaged in similar activities among her 1,100 private photographs and asked that all of them be produced.

It appears that the Plaintiff either produced or provided the Court with access to these photographs and the Court reviewed about 10% of them at random. The Court concluded that none of them showed the Plaintiff engaged in any significant physical activity. The Court observed that most of the photographs were taken from the waist up and only showed her involved in low impact activities.

The Court dismissed the motion on a number of grounds.

Firstly, the Court did not consider the photographs to be particularly relevant.

Secondly, given the number of photographs involved, the Court considered the request that every single one taken since the accident be produced, to be “merely a high-tech fishing expedition” which was “not an appropriate or proportional form of discovery”.

This leaves one to wonder as to whether or not the result might have been different if instead of 1,100 photographs, there were perhaps two dozen.

Of more significance is the fact that in principle, private photographs on a Facebook account are not out of bounds in appropriate cases. If one of the photographs viewed by the Court had shown the Plaintiff involved in a significant physical activity, the result might have been different and it is possible that the Plaintiff would have had to produce all of them. This result would have been even more likely if the Plaintiff would have been foolhardy enough to post such photographs on the public portion of her Facebook account.

This case is yet another useful reminder to litigants to be extremely careful about how they manage their Facebook or other social media accounts, both with respect to photographs and texts, and both with respect to the public and private sections of their accounts.

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