MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 265
woman fell out of an office chair, found that photos on her MySpace and
Facebook accounts could be relevant to her claims that she suffered
permanent injuries and was confined to her bed. The court allowed
extensive discovery, in particular because her Facebook profile appeared to
show her smiling outside her house and mentioned that she had travelled
out of state. The court found “[p]laintiffs who place their physical
condition in controversy, may not shield from disclosure material which is
necessary to the defence of the action.” 194
Where a plaintiff claims severe emotional distress or post-traumatic
stress, American courts have been willing to allow the defence access to
private communications and posts on social networks, as they may be
relevant to the plaintiff’s emotional state. In EEOC v Simply Storage
Management, 195 two plaintiffs sued a former employer for emotional pain
and suffering and loss of enjoyment of life after alleged sexual harassment
by a supervisor. The court ordered the plaintiff to turn over information
relevant to their emotional claims as well as possible alternative
explanations for their suffering. This included any posts, pictures, groups
joined, or applications “that reveal, refer, or relate to any emotion, feeling,
or mental state, as well as communications that reveal, refer, or relate to
events that could reasonably be expected to produce a significant emotion,
feeling, or mental state.” 196 The court limited disclosure of
communications with third parties to those necessary to provide context to
issues of emotion, and did not require disclosure of pictures posted by
others. The court limited the precedent set by stating that such discovery
obligations were only relevant to claims that went beyond “garden variety
emotional distress”. 197
When a plaintiff claims that they permanently cannot work or have
some form of brain injury from an accident, a court may hold that their
entire account, including private communications, may be relevant to the
validity of the claim and their capacity to communicate. In Wice v
Dominion of Canada General Insurance Co, 198 the court determined that any
194
Ibid at 5.
195
EEOC v Simply Storage Management 270 FRD 430 (SD Ind 2010).
196
Ibid at 9.
197
Ibid at 12.
198
Wice v Dominion of Canada General Insurance Co, 75 CCLI (4th) 265 (available on WL
Can).