Defence & Indemnity - August 2017: IV. PRACTICE ISSUES - Nemchin v. Green, 2017 ONSC 1403, per Corthorn, J. [4241]

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IV. PRACTICE ISSUES

B. A court held that the Defence was precluded from tendering social media evidence relating to the Plaintiff and relying on it at trial, notwithstanding that the Plaintiff may have been obligated to disclosure it herself, where the Defendant agreed to a procedure whereby the Defendant would access the social media sites (but disclose what it found to the Plaintiff) and the Defendant did not disclose what it found until the Plaintiff’s cross-examination at trial.

Nemchin v. Green, 2017 ONSC 1403, per Corthorn, J. [4241]

I. FACTS AND ISSUES
The Plaintiff was suing the Defendant for injuries allegedly caused by a motor vehicle accident. Specifically, she argued that the accident caused her to suffer from post-traumatic stress disorder (PTSD).
 
Back in September 2015, the Defendant’s counsel wrote to the Plaintiff’s counsel, insisting that the Plaintiff had deactivated her Facebook page and deleted relevant content from her social media accounts and that all such content should be reinstated and preserved immediately. The Plaintiff’s counsel came to an agreement with the Defendant’s counsel to the effect that the Plaintiff would reinstate her social media accounts for a period of eight hours, to allow the Defence to access her posts, pages, events and photographs and save material that the Defence considered relevant. It was agreed that at the end of that eight hour period, the Plaintiff would again deactivate her account. It was also agreed that the Defence would provide copies of any material it retrieved from the Plaintiff’s social media account to the Plaintiff’s counsel “post haste” and add those documents to the defendant’s Affidavit of Documents.
 
What the Defendant’s counsel recovered from the Plaintiff’s social media accounts was voluminous. It was put on a disk and the hard copy was oriented in six books.
 
Through inadvertence the Defendant did not provide copies of what it had recovered to the Plaintiff’s counsel or add them to an Affidavit of Documents, as agreed.
 
At trial, Defence counsel sought to cross examine the Plaintiff from 20 posts from her Facebook page and have the posts admitted into evidence. The Plaintiff counsel objected, noting that the documents had not been produced to the Plaintiff or added to the Defence Affidavit of Documents as per the agreement and that the Plaintiff would be prejudiced by not having the opportunity to review the posts in question prior to giving evidence or to have provided copies to her experts (one of whom had already testified) for consideration. The Defence argued that the Plaintiff had initially breached her disclosure obligations by not including the posts in question in her initial document production, given that at all times she was in possession, power and control of the social media accounts. The Defence offered to agree to conditions that would remove any prejudice; that is to take a break during cross-examination of the Plaintiff to give her time to look at the posts and to allow the Plaintiff’s counsel to question her about them without restriction in re-examination.
 
The Plaintiff argued that the Plaintiff had not failed in her initial disclosure obligations by not including the social media material in her original Affidavit of Records. Her counsel argued that since the plaintiff’s claim was for PTSD, Facebook material showing what activities what she physically capable (or not capable) of doing did not bare upon her claim for the mental health issue of PTSD.
II. HELD: For the Plaintiff; Defence precluded from cross-examining the Plaintiff on the Facebook posts or tendering them in evidence.

1.   The Court noted that the Ontario rules of procedure are such that “the Court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules”: Iannorella v. Corbett 2015 ONCE 110.

2.   The Court held that the Defence had not fully and rigorously complied with its disclosure obligations. Had the Plaintiff not agreed to allow the defence to have access to the social media records as it did, the defence would have been forced to apply to the Court for an order to gain access to this material and, if successful, the order would have likely required the defendant to produce copies of anything received to the Plaintiff and disclose same in a Supplementary Affidavit of Documents.

3.   The Court also held that the manner posed by the Defence for dealing with the new disclosure in the continuing trial would cause unacceptable prejudice to the Plaintiff:

22   I agree with the plaintiff that to proceed in the manner proposed by the defendant would result in prejudice to the plaintiff: 
  • It would not be sufficient to allow the plaintiff time to review only the Posts prior to resuming her cross-examination. Fairness would require that she be given an opportunity, prior to continuing the cross-examination, to review all of the materials retrieved (hundreds if not more than a thousand pages of documents)
  • The interruption required to facilitate that review would be inefficient, disruptive, and have an impact on trial fairness
  • The plaintiff’s expert who has already testified would not have an opportunity to review and/or comment, as may be required, upon the contents of the Posts
  • The plaintiff’s other experts, including participant experts, would not have a reasonable opportunity for review and comment, the latter if necessary, upon the contents of the Posts

III. COMMENTARY:
 
This case suggests that relevant Facebook or other social media materials of a plaintiff ought to be included in the plaintiff’s Affidavit of Records. We find the failure of plaintiffs to do this to be common. This decision is in accord with other cases that suggest that social media material showing what a plaintiff is physically capable of doing is of questionable relevance with respect to alleged mental health injuries or disabilities.
 
Also, with respect, it is our view that the Plaintiff’s counsel in this case essentially abdicated regarding his duty to vet his client’s material for relevance and materiality before allowing the defendant’s counsel to access it by insisting that the defendant’s counsel “do the heavy lifting” of collecting and reviewing all of the contents of the plaintiff’s social media sites. It was a wonderful opportunity for the Defence to see the entire package because the Defence is not thereby a hostage to the view of the Plaintiff’s counsel’s view of what is (or is not) relevant and valuable intelligence can be gleaned from material that is technically irrelevant.
 
In the circumstances, the Court did not have to address the Plaintiff’s argument that the Defence also breached its disclosure obligations by not disclosing what Plaintiff social media material it had in its possession, given that it was the Defence which had started the ball rolling by noting that the Plaintiff had deactivated her accounts and deleted material.
 
In Alberta, where it is defence counsel or his/her agent that finds this material, the defence would only be obligated to do that if it wants to tender the material in evidence at trial as proof of the truth of its contents. It would be covered by solicitor’s brief privilege such that it should be identified but production should be refused on that basis. The defence would be entitled to put this material to the plaintiff at trial, thus waiving the privilege at that time if the material is only used to challenge the plaintiff’s credibility. A good defence practice is to maintain the privilege until the plaintiff has been examined at Questioning, where the plaintiff is examined as to facts disclosed by the materials without putting the materials themselves to the plaintiff. If the plaintiffs’ Questioning answers are contradicted by the materials, the defence can waive the privilege and produce copies to the plaintiff well before trial. That way, the plaintiff’s credibility is irreparably damaged by the contradiction after it is too late for him/her tailor his/her Questioning evidence and he/she cannot argue at trial that there was an ambush at trial. Also, the defence can then tender the material as evidence for proof of the truth of its contents, and allow defence experts to take it into account in forming their opinions. The bottom line is that the honest plaintiff would have nothing to fear and the dishonest plaintiff will be hoist on his/her own petard.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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