November 08, 2011, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Robert Bujold
Decision Date: October 24, 2011
Eniko Rakosi, was injured in a motor vehicle accident on May 5, 2008. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company payable under the Schedule. Disputes arose regarding Ms. Rakosi's entitlement to certain benefits, and Ms. Rakosi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.
A pre-hearing discussion in this case was held on March 24, 2011. At that time, State Farm requested that Ms. Rakosi produce photographs with her image contained on her Facebook account. Ms. Rakosi refused and State Farm brought this motion to compel production.
Should Ms. Rakosi be required to produce photographs with her image contained on her Facebook account?
Ms. Rakosi was required to produce, within 30 days of the date of this decision, all photographs with her image posted to her Facebook profile (including any limited-access or private portion of her profile) for the period May 5, 2008 to May 5, 2010.
EVIDENCE AND ANALYSIS:
The Test for Production Generally
The Arbitrator examined the test for production generally at FSCO in Bartlett and RBC General Insurance Company, and concluded that the test for production remains "semblance of relevance." In the special case, a party may not be required to produce documents or give information, although seemingly relevant, where the degree of relevance does not warrant production when weighed against the following considerations: the sensitivity of the information requested; the time, effort and costs of compliance; the availability of the requested information through other sources; and the timing of the request.
"Relevance is framed by reference to the issue being arbitrated." In this case, Ms. Rakosi claimed income replacement benefits, attendant care benefits, medical benefits and the cost of various assessments, including a chronic pain assessment recommended at 1 ½ years post-accident, the application for which claims that Ms. Rakosi had experienced no functional improvement in her pain condition.
State Farm provided a copy of Ms. Rakosi's public Facebook profile from three dates when her account was accessed between October 2010 and April 2011. On each occasion, the profile contains a single, updated photograph of Ms. Rakosi. These photographs do not show Ms. Rakosi engaged in any activities and, as such, do not in themselves have any probative value. State Farm notes that Ms. Rakosi's "Facebook friends" grew from 224 to 332 during the noted time period.
State Farm also provided over 30 photographs of Ms. Rakosi from her public profile on another social networking site called "Hi5" which it accessed on October 6, 2010. Many of these photographs also had little, if any, probative value. However, several photographs on the Hi5 site depict Ms. Rakosi engaged in a variety of activities, including what appears to be an activity known as "zip-lining" and therefore have arguable relevance to the issues in dispute.
Ms. Rakosi did not contest, for the purpose of this motion, the relevance or the reliability of the photographs included in State Farm's brief. The Arbitrator therefore accepted the photographs as Exhibits.
The Arbitrator agreed with Ms. Rakosi that Facebook photographs showing her socializing, or even partaking in physically demanding activities, have no necessary relation to her ability to engage in her prior employment or complete self-care tasks. Still the Arbitrator would not refuse an order for production at the pre-hearing stage on this basis. The test at this stage was not whether the moving party had established clear relevance between the documents sought and the issues in dispute, but whether the documents had a rational connection or semblance of relevance to the issues in dispute. Indeed, in the absence of formal discovery, a party may not be able to establish relevance to a higher standard without first gaining access to the documents or files.
The Arbitrator noted that Ms. Rakosi's argument on this point would be less strong if she were claiming, for example, Non-Earner benefits where the test of entitlement is a "complete inability to carry on a normal life."
In this case, Ms. Rakosi's Hi5 account shows photographs of her engaging in various social and recreational activities. These photographs may not prove to be as compelling as State Farm believed them to be, but the Arbitrator was satisfied that at least a semblance of relevance exists between these photographs and Ms. Rakosi's claims that she was unable to work or engage in certain self-care activities due, at least in part, to a chronic pain condition. He was also satisfied that Ms. Rakosi's Facebook profile likely contained photographs similar to those shown on the Hi5 site.
Admittedly, some of the photographs produced may not relate to the issues in dispute, but it is not unusual for a class of producible documents to contain irrelevant information. For example, adjuster's log notes, though routinely produced to the date of the application for mediation, may contain little, if any, information relevant to the hearing. The same may be said for pre-accident clinical notes and records of treating physicians. However, the fact that documentary production may fail to ultimately disclose anything of any import should not preclude a party from having access to files or classes of documents that have a rational connection to the issues in dispute.
Therefore, in the absence of special considerations, the Arbitrator found that photographs on Ms. Rakosi's private Facebook profile should be produced to State Farm as part of the pre-hearing process.
With regard to special considerations that may weigh against production, the Arbitrator was not persuaded that Ms. Rakosi had an expectation of privacy that should outweigh State Farm's right to access potentially relevant documentation. He did not accept that there is a parallel to be drawn between personal friends that Ms. Rakosi may invite into her home to view "pictures on her bedroom wall" and providing access to 332 online "friends" to view pictures on her Facebook wall.
The privacy distinction does not relate so much to the nature of the pictures that may be displayed in each location, but the locations themselves. Unlike one's home, Facebook is a virtual location that "users intend to take advantage of… to make personal information available to others." It is a tool for social networking and sharing personal information. The Arbitrator agreed with Rady J. in Murphy v. Perger, that "any invasion of privacy [arising from production of Facebook content] is minimal." As he also noted, and which the Arbitrator found to be applicable to this case, "the plaintiff could not have a serious expectation of privacy given that 366 people had been granted access to the private site."
The Arbitrator was also not persuaded that the time, cost or practicalities of compliance with an order to produce photographs on Ms. Rakosi's Facebook profile should outweigh State Farm's right to access the photographs. As noted by State Farm, the photographs remained within Ms. Rakosi's possession, control and power and should be easy to produce.
Further, the Arbitrator was not satisfied that reliability concerns should prevent an insurer from gaining access to Facebook photographs. Should a dispute arise over the time frame when a particular photograph was taken, the hearing arbitrator will need to determine whether viva voce or other corroborating evidence renders the evidence sufficiently reliable to warrant admissibility. If admitted, there will still be the issue of the appropriate weight to be assigned the evidence. These sorts of determinations are regularly made at both FSCO and the courts.
The parties did not identify any other practical issues, specific to FSCO arbitrations or otherwise, that would render a production order in this case unworkable. The Arbitrator noted that there was no issue with respect to the timing of State Farm's request, as it first requested production of Ms. Rakosi's Facebook photographs in November 2010.
For all of the above reasons, Ms. Rakosi was required to produce, within 30 days of the date of this decision, all photographs with her image posted to her Facebook profile (including any limited-access or private portion of her profile) for the period May 5, 2008 to May 5, 2010. Ms. Rakosi did not submit that she would have any difficulty producing photographs covering this or any other time period. However, she did request that any order be limited to the time period for which benefits are in dispute, i.e. January 13, 2009 to May 5, 2010. The Arbitrator was not persuaded that the order should be limited to this time period. Photographs created and posted when Ms. Rakosi was in receipt of benefits may also prove probative to the issues in dispute. The Arbitrator was prepared, however, to limit production to the two year mark when the tests of entitlement to both income replacement benefits and attendant care benefits change. Ms. Rakosi shall therefore produce photographs posted to her profile for the period May 5, 2008 to May 5, 2010.