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FEATURE 22 www.lawtimesnews.com FOCUS ON PERSONAL INJURY "What [plaintiff 's counsel] shouldn't be doing is giving defence lawyers a key to the entire site, to fish through potentially thousands of documents. That's not best practice." Stephen Birman, Thomson, Rogers LLP 124 O.R. (3d) 523. Going forward, says Birman, "It's going to be more difficult to try to argue that evidence should be excluded in its entirety . . . and the focus ought to be more narrow, on a specific photograph or part of the video." And even though the court accepted that the trial judge's ruling was reasonable in excluding 20 of Nemchin's Facebook posts from evidence, "the trial judge was required to consider whether there were any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial." However, says Birman, "When it comes to social media information . . . it will be hard to argue that defendants using that information, as long as it's relevant to the claim, would take [plaintiffs] by surprise, because, number one, it's coming from their own profiles, their own sites, so nobody should be surprised to see it." In this case, the parties had already reached some agreement to access social media of the plaintiff, he says. The obligation is generally to disclose the sites, and plaintiffs should expect that they will be asked questions about their social media accounts, and to the extent they're public, they' ll be accessed later, at discovery and trial, and will be questioned about them. "You may be able to argue that what's on those accounts isn't relevant, but for personal injury claims, a wide berth is given to relevance," says Birman, with anything athletically or physically challenging expected to be examined. "As a plaintiff 's lawyer, you always need to be cognizant of surveillance being used and also social media," says Lindsay Charles of McLeish Orlando LLP in Toronto, who also represents plaintiffs. "The takeaway is that you really need to have your client well prepared . . . you need to hone in before the client's examination for discovery," Charles says. "It's important to make sure the plaintiff understands the risks of using absolute phrases; for instance, the words 'always' or 'never' when describing her level of function and her injuries and symptoms. "Doing so will help safeguard against the use of surveillance evidence and social media being used for impeachment purposes at trial."