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Benefits denied based on Facebook pictures

Posted by Rehan Khalil on November 26, 2009   |   No Comments

I have talked about Facebook in the context of lawsuits on numerous occasions on this website. Recently, a Quebec woman made international headlines for her dispute with Manulife regarding her disability benefits.

In this case the woman’s disability benefits through her workplace insurer Manulife were terminated when an adjuster found pictures of her at events and engaged in certain activities.

Manulife has not commented on the matter but did state, “”we would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

The woman has now hired a lawyer to assist her in the case. Many courts over the last three years have permitted the disclosure of Facebook profiles. Also, insurance adjusters and lawyers are frequently requesting preservation of the pages.

In this case, the woman alleged to be off work due to depression. Facebook photographs are not enough evidence to terminate benefits. Moreover, the woman also claimed that she engaged in the activities based on recommendations from physicians.

Given the amount of media attention this case has already received perhaps, Manulife might want to settle the matter to avoid bad PR.

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Facebook Successful in Dispute

Posted by Rehan Khalil on October 13, 2009   |   No Comments

A workers compensation dispute between the airliner (employer) verses the flight attendant (employee) resulted in the airliner seeking a subpoena seeking:

….all documents, electronic or otherwise, related directly or indirectly, to all activities, writings, photos, comments, e-mails, and/or postings” on Hensley’s Facebook account.

However, Facebook resisted the subpoena on the grounds of privacy rights and was eventually cited in contempt of court.

The article states:

Facebook’s response to Tabb sent last week says that “users such as Ms. Hensley rely on Facebook to protect their data and vigorously enforce the privacy decisions they make on Facebook.” It adds: “Courts have interpreted the ECPA to prohibit services such as Facebook from producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena.”

The party seeking the documents backed down.

Recently it was reported that the subpoena would not be necessary after all as the Plaintiff lawyer agreed to a release executed by the Plaintiff authorizing Facebook to disclose.

This case is different from other cases involving Facebook in the context of litigation in that the service provider itself was being asked to disclose and preserve material on an individual.  As opposed to a party going before a court and seeking production from the Plaintiff.

Of course, requesting a Plaintiff to either preserve and or produce a Facebook profile could prove to be useless. It’s easy for someone to pull down their page or delete incriminating photos and only produce harmless evidence.

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Facebook Profile to be Produced

Posted by Rehan Khalil on October 3, 2009   |   No Comments

facebook_logoAgain the Facebook profile of a Plaintiff in a personal injury law suit has been ordered to be produced by an Ontario Judge.

In Wice v. The Dominion of Canada General Insurance Company the Plaintiff was a 35 year old man who suffered a brain injury in a motor vehicle accident. He started an action against his own insurance company for accident benefits specifically, medical and rehabilitation & accident benefits.

The Plaintiff alleged that due to his impairment he was unable to respond to emergency situations and required 24 hour attendant care at a cost of $5000 per month for life.

The Defendants brought a motion seeking among other things access to his separation papers and the preservation and production of his Facebook profile.

The Judge ordered his separation papers be produced since they likely shed light on his ability to take care of his son.

In terms of the Facebook profile the Judge stated:

The case at bar, while not a tort case, does raise the issue of Mr. Wice’s ability to function – at least in certain defined circumstances. As I have already pointed out, his ability to function in a wide range of social situations may be circumstantial evidence from which a trier of fact could draw an inference about his ability to function in the defined circumstances in issue. The Defendant has produced evidence demonstrating that there are relevant photographs of the Plaintiff participating in social activities posted on his Facebook profile. The court may also infer from the nature of the Facebook service, that other relevant documents are likely included in the Plaintiff’s profile.

Accordingly, I order that the Plaintiff produce a further and better Affidavit of Documents within 30 days which is to include relevant documents contained in his Facebook account, or any other similar account.

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The Freedom to Criticize?

Posted by Rehan Khalil on September 15, 2009   |   No Comments

In the United States a lawyer who criticized a Judge on his blog was fined. Similar stories are taking place as a result of Facebook and Twitter. The New York Times article can be found here.

All too often, lawyers return from court or discoveries and openly rant about the other lawyer, party or Judge.

Lawyers who blog or use social sites should begin to smarten up based on what has been happening in the United States. The New York Times article cites a legal professor who states, “when you become an officer of the court, you lose the full ability to criticize the court”.

It’s foreseeable that such incidents will rise as it is apparent more lawyers are tech friendly and many between the ages of 25-45 are using blogs and Facebook.

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Facebook in Personal Injury Actions

Posted by Dark Knight on May 11, 2009   |   No Comments

Time and time again lawyers acting for Plaintiff’s in personal injury actions are facing the dilemma posed by Facebook. The Globe and Mail reported today, Facebook Foils Canadian Lawsuits. This has been a growing trend since 2007 where a number of courts have produced Plaintiff’s personal Facebook profiles.

In a lawsuit the court can order various documentation about a Plaintiff both pre and post accident. It has become customary that certain information is almost always produced. For example, clinical notes and records from treating physicians, income tax returns, employment file etc. However, in some cases photographs are requested depicting and or showing the Plaintiff engaging in various sorts of activities.

It then stems, that there are few options for the Plaintiff in a lawsuit to resist producing a Facebook profile. Moreover, given the recent precedent from Courts across Ontario a Plaintiff is obliged to produce his or her profile.

The comments on the Globe and Mail site are interesting and really hate on Plaintiff’s and their lawyers.

Keep in mind that these rulings would also apply to Twitter pages, My Space pages or any other forms of Blogs.

http://www.theglobeandmail.com/servlet/story/RTGAM.20090510.wfacebooktrial0510/EmailBNStory/Technology/

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