Defence Lawyer are on social media, including those who represent the insurance companies! There have been a series of cases across Canada where lawyer have demanded production of plaintiffs’ Facebook pages in order to use the information against the plaintiff.
Court rules in every province require the parties to disclose any information they have that may be relevant to the matters at issue in litigation. This now includes any electronic information, and some courts have been interpreting this to include social websites.
I have prepared this public legal education memo to help raise awareness about how using social networks can affect your claim. The clear message is that plaintiffs who post details of their private lives on a public website risk having all of that information used against them in court.
Canadian Cases Where Facebook was used Against the PlaintiffFacebook isn’t Private
In Leduc v. Roman the plaintiff, Leduc filed a compensation claim for injuries he suffered in a car accident. The defendant, Roman, asked for a court order to produce the contents of Leduc’s Facebook page! Leduc claimed that, because he only allowed access to his Facebook page to his Facebook “friends”, the contents of his Facebook site were private and confidential.
Roman lost the initial motion to force production of Leduc’s Facebook site. But Roman appealed and Ontario’s Superior Court issued a decision ordering Mr. Leduc to produce the entire contents of his Facebook site.
Depressed Victim Looked Too Happy
In another example from a case in Quebec, Nathalie Blanchard was on disability for depression. She had her benefits terminated because her insurance company, Manulife found pictures on her Facebook page where she was smiling and looking like she was having a good time. In other words, she didn’t look depressed so the insurance company cut off her benefits. Blanchard had to sue Manulife to reinstate her disability benefits.
Facebook Can Be Used For Cross Examination
In the case of Terry v. Mullowney, the lawyer for the defendant, Mr. Mullowney used excerpts from the plaintiff’s facebook page to cross examine Mr. Terry about his social life.
Court Orders Lawyer to Mislead His Client to get Access to Facebook
In what has to be one of the most egregious invasions of privacy that I have ever seen, an insurance company in New Brunswick made an ex parte (secret) application to court requesting a judge to order the plaintiff Ms. Sparks to turn over copies of all the information on her social networking sites.
The most unbelievable part of the decision is that Ms. Sparks own lawyer was ordered by the judge to take part in the deception. Ms. Sparks lawyer appealed the judge’s decision. The insurance company settled Ms. Sparks claim shortly before the appeal was scheduled to be heard.
6 Things You Need to Know About Injury Claims and Social Networking
Requests to turn over information from Facebook pages and other social networks have become a routine part of every litigation case. Therefore, I thought it would be helpful to prepare this memo to educate my clients, and the public, about what they can do to prevent information from their social networks being used against them in court.
1 – Don’t Talk About Your Claim!
The most important message to take from all the cases that have been reported across the country is that plaintiffs should not talk about their case on-line. Do not post anything publicly that discusses your personal injury claim or your injuries. Talking about your lawsuit on-line could possibly violate solicitor/client privilege. It may also provide information that could be used against you later on if your claim has to go to court.
2 – Check Your Settings
Check the privacy settings on your social network profile. Make sure it is not open for viewing to the public. For example, on Facebook there are privacy settings that allow anyone in the world to look at your entire website. You can also limit the information to your “Facebook friends” or allow friends of friends to be able to see the information on your website.
3 – No Pictures Please
If you have been seriously hurt, do not post pictures engaging in physical activities that you are not able to do as a result of your injuries. It is also important that you don’t allow your friends to post these types of pictures.
For example, in one case the personal injury claimant claimed she suffered from serious back injuries. However, the insurance company defending her claim downloaded pictures from her Facebook account showing her riding on a jet-ski during a vacation in Mexico.
4 – Beware of New “Friends”
Do not accept “friend” invitations from people you do not know. While this may seem like common sense, there are people out there who accept friend invitations from anyone. Even if they don’t know them in “real life” off-line. It is possible that an investigator working for the defendant’s insurance company may be posing as a friend in order to obtain access to your social networking account to find out information about you that they can use against you in your claim.
5 – Make Sure Friends Are Really Friends
Take a second look at your “friends” list. If there is someone on a list that you don’t know or recognize “un-friend” them or delete them from your account. Don’t worry about hurting someone’s feelings. Would rather miff someone you really don’t even know or do something that could potentially damage your personal injury claim?
6 – Remember Shakespeare
William Shakespeare said it best: “…all the world’s a stage”. When we participate in Facebook, Twitter and Snapchat we are all part of a worldwide play. Before you post something to the web think about how you would feel if you shared that post, video or photo with 100,000 people (or in court).
Anything that you post to the Internet can, and possibly will, be used against you in future litigation. If you are engaged in litigation or considering filing any kind of compensation claim, you would be well advised to consider what information is floating around the Internet that might damage your claim.
This memo is prepared for general public education purposes. Nothing in this memo should be construed as legal advice. If you have a question about how social media could affect your claim you should talk to a lawyer about your case.