Defendant's requests for information are overbroad

January 22, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Jones v. I.F. Propco

Decision Date: January 4, 2018
Heard Before: Justice L.C. Leitch

DISCLOSURE: Defendant seeks full list of participant experts and their opinions earlier than permitted; defendant seeks content of private Facebook messages on the basis that if the public portion of the Facebook profile has information regarding the case then it is reasonable to expect the private parts of the profile do as well; Justice Leitch denies both requests

On February 18, 2014 in which Ms. Jones claims that she was hit in the head by ice that fell from I.F. Propco’s property. She claims $2,400,000 in general and special damages alleging injuries and losses which include a severe concussion, post-concussion brain syndrome, neck pain, shoulder pain, headaches, imbalance, dizziness, visual disturbance, concentration impairment, diminished memory, pain and suffering, loss of enjoyment of life, and a reduced capacity to participate in various activities.

I.F. Propco denies liability and damages and disputes the circumstances of the alleged incident. I.F. Propco brings a motion to require Ms. Jones to answer a number of refusals described below.

I.F. Propco has requested the following:

1. a list of participant experts that Ms. Jones intends to call as witnesses at trial and the complete file of each participant expert;
2. the details of any participant expert’s opinions not already contained in the expert’s records; and
3. legible copies of any participant expert witness’ records that are illegible at Ms. Jones’s expense.

Justice Leitch reviewed the law and noted that the Court of Appeal has distinguished between “litigation experts” and “participant experts”.  Participation experts are experts “who form opinions based on their participation in the underlying events… rather than because they were engaged by a party to the litigation to form an opinion”, and include experts include treating physicians, for example. The Court of Appeal ruled in Westerhof that participant experts are not required to comply with Rule 53.03 of the Rules of Civil Procedure. 

The Court of Appeal held that the exclusion of participant experts from Rule 53.03 compliance was justified for a number of reasons, one of which related to the party’s disclosure obligations. The Court was “not persuaded that disclosure problems exist in relation to the opinions of participant experts…requiring that they comply with rule 53.03”, as the Court stated further at para. 85:

In many instances, these experts will have prepared documents summarizing their opinions about the matter contemporaneously with their involvement. These summaries can be obtained as part of the discovery process. Further, even if these experts have not prepared such summaries, it is open to a party, as part of the discovery process, to seek disclosure of any opinions, notes or records of participant experts… the opposing party intends to rely on at trial. If the notes produced are illegible, the party producing them must provide a readable version.

Rule 31.06(3) of the Rules holds that a party may obtain disclosure of the findings, opinions, and conclusions of an expert that are relevant to a matter in issue in the action except when the expert is a litigation expert who was retained for the sole purpose of the litigation or the other party undertakes not to call the expert as a witness at the trial. In other words, a party can obtain the findings, opinions, and conclusions of participant experts through the discovery process under Rule 31.06(3).

I.F. Propco relies on rule 31.06(3) on this motion. I.F. Propco requests that Ms. Jones provide a list of participant experts that she intends to call as witnesses at trial and the complete file of each of those experts from the inception of the relationship with Ms. Jones to the present together with legible copies of any of the records of any participant expert witnesses and the details of any of their opinions not already contained in their records.

As set out in Ms. Jones’s factum at para. 42:

Ms. Jones submits that “there is nothing in the Rules or governing jurisprudence that requires counsel to determine the issue of participant experts at this stage of the litigation”.

This contention is not entirely accurate. Rule 31.06(3) and the Court of Appeal’s comments permit the defendant to request the findings, opinions, and conclusions the plaintiff’s participant experts during this stage of the litigation (the discovery process).

Ms. Jones’ counsel also disputes that I.F. Propco’s counsel requires this information in order to determine what experts I.F. Propco should obtain. Ms. Jones’s position is that the requested production is forcing Ms. Jones to determine her trial strategy now.

Justice Leitch agrees with this submission.  Although Ms. Jones is required to provide documentation of the participant experts’ findings and opinions that are relevant to the issues in the litigation, Ms. Jones is not required to provide a list of experts that Ms. Jones “intends to rely on at trial” as requested by I.F. Propco. While Ms. Jones has to provide disclosure related to any relevant findings of the participant experts, it is still open to Ms. Jones to not call certain participant experts to testify at trial or to not rely on certain participant experts’ reports. There is no authority that requires a party to provide a finalized list of participant experts that the party intends to rely on this early in the proceedings.

In fact, Rule 50.04 requires a party to file a list including the “names of witnesses that the party is likely to call at the trial” 5 days before the pre-trial conference and Rule 50.06 requires parties to consider “the number of expert witnesses and other witnesses that may be called by each party and dates for the service of any outstanding or supplementary experts’ reports” at the pre-trial conference. The pre-trial conference in this case is not scheduled until November 15, 2018. Therefore, requiring Ms. Jones to provide a list of participant experts that Ms. Jones intends to rely on is premature.  Rather, Ms. Jones is only required to provide relevant disclosure of the participant experts’ findings and conclusions during the discovery process at this time.

I.F. Propco’s request for the complete file is also not supported by the Rules.  Rule 31.06(3) only requires a party to disclose the “findings, opinions and conclusions of an expert…that are relevant to a matter in issue in the action and the expert’s name and address.”  Anything in the file that is not relevant to a matter in issue is therefore not required.  Justice Leitch determined that I.F. Propco’s request for the complete file is overbroad.

Rule 53.03 requires a party who intends to call an expert witness at trial shall serve a report on the other party at least 90 days before the pre-trial conference and a party who intends to call an expert witness at trial to respond to the expert witness of another party to serve a responding report at least 60 days before the pre-trial conference. I.F. Propco’s request for “details of participant experts’ opinions that are not already in expert reports” should therefore be dismissed for prematurity since the pre-trial conference is not until November 15, 2018 and Ms. Jones has a significant amount of time to produce such opinions and remain in compliance with Rule 53.03.

The Facebook profile

I.F. Propco seeks an order requiring Ms. Jones to produce her Facebook account activity including profile posts and comments from February 18, 2009 to the present, noting that Ms. Jones has provided a summary of statements from several witnesses who are expected to testify that Ms. Jones’s social, family, leisure, domestic, employment, and volunteer activities subsequent to the alleged incident have changed from such activities prior to the incident.

Ms. Jones produced a copy of the public portion of her Facebook profile page, including posts from May 24, 2012 to October 2, 2017, which, according to I.F. Propco, reveals that Ms. Jones uses Facebook in relation to these activities.  I.F. Propco’s position is that the relevant conduct revealed on the public portion of her Facebook leads to an inference that there is relevant information on the private portion of her Facebook profile. As a result, I.F. Propco submits these circumstances fit squarely within those considered by Rady J. in Murphy v. Perger, [2007] O.J. No. 5511 (Sup. Ct.), where the Court commented at para. 17 in relation to photographs on Facebook that “given that the public site includes photographs, it seems reasonable to conclude the private site would as well.” In that case, the plaintiff had served photographs of herself prior to the accident. The Court in Murphy concluded that the invasion of the plaintiff’s privacy in that case was minimal and outweighed defendant’s need to have the photographs in order to assess the case and specifically noted that the photographs on the private site had been shared with 366 people.

Under Rule 30.02 of the Rules, every document relevant to any matter in issue in an action that is or has been in the possession, control, or power of a party to the action shall be disclosed. I.F. Propcos must satisfy the court that relevant information exists on Ms. Jones’s Facebook private account that was not disclosed to I.F. Propco (Stewart v. Kempster, 2012 ONSC 7236 (CanLII) at para. 12). “[T]here must be evidence that posted photographs are relevant in order to justify an order for production” (Knox v. Applebaum Holdings Ltd., 2013 ONSC 7895 (CanLII) at para. 18 citing Stewart)

Relevant information on the public portion of a Facebook profile supports the inference that relevant information is contained in the private portion of the profile (Murphy at para. 17). I.F. Propco submits that because Ms. Jones’s public Facebook profile contains information relevant to her social, volunteer, family, and enjoyment of life activities, the public posts are relevant and therefore the private posts and comments are relevant too. I.F. Propco recognizes that Ms. Jones has not taken the position that she cannot volunteer at all; however, I.F. Propco asserts that the frequency of her volunteer work post-accident as opposed to what she accomplished pre-accident is what is in issue.

Ms. Jones submits that the public photographs posted are not relevant to the litigation, because they were taken before the accident and only depict her hugging her grandchildren, planting a flower, leaning against a structure, and sitting.

As previously set out, Rady J. ordered the production of photographs from a plaintiff’s private Facebook account in Murphy, because the public webpage had relevant photographs to the litigation and because the plaintiff specifically intended to rely on photographs depicting her prior to the accident. In Stewart, Heeney J. held that the photos on the palintiff’s private Facebook page were not relevant and had no “probative value”.

Justice Leitch accepts that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict, but does not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.

At present, Facebook has about one billion users. Out of those, Ms. Jones in the present case has permitted only 139 people to view her private content. That means that she has excluded roughly one billion people from doing so, including I.F. Propcos. That supports the conclusion that she has a real privacy interest in the content of her Facebook account.

The conclusion that users have a privacy interest in the private portions of their Facebook accounts is more persuasive that the conclusion that they do not because they shared the account with a number of their Facebook “friends”. Users have the option of keeping their Facebook accounts entirely public. Ms. Jones in this case did not. As noted by Heeney J., Ms. Jones excluded more than one billion people from accessing her account, suggesting that she does have an interest in protecting her privacy. There is no evidence that the posts are relevant because the activities depicted in the photographs are not relevant to the extent of Ms. Jones’s physical limitations since the accident. In other words the Justice is not satisfied that the photographs on her public Facebook page are relevant and that by inference the posts on her private Facebook page must be relevant. Therefore, these is no need to assess the privacy interests of Ms. Jones against any probative value obtained from the disclosure. On this basis, Ms. Jones’s Facebook messages (private messages between Ms. Jones and her Facebook friends) or comments should be disclosed.

Questions arising from the security camera video recording

I.F. Propco has security camera footage from approximately 3:00 p.m. to 6:00 p.m. on February 18, 2014. I.F. Propco requests an order that Ms. Jones view the security camera video and identify when the alleged incident occurs in that video. Ms. Jones acknowledges that the incident is not clearly identified in the video footage and the video generally shows ice falling in the area. The Justice ruled there was no need for Ms. Jones to answer any further questions in relation to the video.                   

Redaction of non-party records

I.F. Propco requests un-redacted copies of Ms. Jones’s certain redacted medical records.

The position of Ms. Jones’s counsel is that they have redacted from clinical notes and entries that they have concluded are irrelevant to the matters at issue in the claim and thus an un-redacted copy of the clinical notes need not be produced.

Justice Leitch noted that in some circumstances, redactions are permissible. Permissible redaction requires two elements: the information that is sought to be redacted must be irrelevant and there must be a good reason for its redaction.

In this case Ms. Jones’s counsel produced for my review the un-redacted copy of the small number of redactions made from the clinical records in issue. Justice Leitch reviewed the four entries which were redacted and conclude that the redaction in relation to what Ms. Jones reported March 14, 2016 is appropriate, because the redactions are irrelevant and there is a good reason for the redaction.  Save and except for those redactions, the balance of the records must be produced.

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