Four considerations for surveillance and Facebook evidence

Thomson Rogers partner explains key Court of Appeal decision and how personal injury lawyers can deal with it

Four considerations for surveillance and Facebook evidence
Deanna Gilbert is a partner with Thomson Rogers.

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A recent case from the Ontario Court of Appeal has provided new guidance on the use of surveillance and Facebook evidence at trial. In the case of Nemchin v. Green the trial judge excluded surveillance and Facebook evidence. According to one leading personal injury lawyer, we should be paying attention to the reasons why.

Deanna Gilbert, a partner at Thomson Rogers Lawyers, breaks down the implications of the decision into 4 major points. The decision reviews the test for admissibility of surveillance at trial, it reviews how this evidence can be used for impeachment vs substantive evidence, it reviews the applicability of the rule previously set in Browne v. Dunn and it provides some guidance as to the timing of the motion for excluding this evidence.

“This is really a nitty gritty overview as to how you actually deal with admitting or excluding the evidence at trial,” Gilbert says.

First, she explained that Nemchin v. Green provides that surveillance and Facebook evidence needs to be subject to a voir dire. At that voir dire, the videographer must attest that the video is a fair and accurate depiction of what he or she observed on that day. As well, it needs to be shown that the video is not going to impair a fair trial.

“This is really the judge’s first chance to look at the surveillance with the jury out of the room,” Gilbert says, “in case the judge sees something that could impair the fairness of the trial.”

She cited an example where in one of her own cases a video showed her client engaging in a practice which, while not germane to the case or his injuries, may have prejudiced the jury against him. Had the case gone to trial, the voir dire process would have allowed the judge to assess whether the surveillance should be shown to the jury.

Second, Nemchin v. Green reviews when surveillance evidence can be used for impeachment or substantive proof. If the video evidence is disclosed at least 90 days before trial it can be used as substantive evidence and/or for impeachment.  Conversely, if the privilege is maintained over the video, then pursuant to rule 30.09, it can only be used at trial for impeachment.

“Even just for impeachment, surveillance can be very damaging,” Gilbert explains. “In any personal injury case, the plaintiff’s credibility is vital, because juries want to help people they like and believe…it’s especially important when you don’t have an objective injury and the jury has to trust that the plaintiff is suffering from whatever he or she claims…A video seemingly establishing inconsistencies between what the Plaintiff says and what the Plaintiff does can be a big problem.”

Third, Nemchin v. Green reviews the applicability of the rule in Browne v. Dunn to the introduction of surveillance. The rule generally requires that if counsel intends to rely upon the contradictory evidence of a witness, that evidence must first be put to the witness to give the witness an opportunity to justify the contradiction.  That rule, Gilbert explained, feeds into the issue of a ‘spectrum of inconsistency’.  Using the example above, a Plaintiff who has said that he or she “can’t” bend down and is seen on surveillance bending, may be viewed as less contradictory than a Plaintiff who has said he or she “has difficulty” bending down and is seen bending down. In Nemchin v. Green the Court of Appeal ruled that evidence of a major discrepancy needs to be put to the plaintiff in cross examination in keeping with the rule in Browne v. Dunn. Minor discrepancies, on the other hand, may not need to be put to the Plaintiff before the defence can rely upon the introduction of surveillance for substantive proof.

Fourth, Nemchin v. Green reviews the issue of the timing of a motion to exclude surveillance. At trial in Nemchin v. Green the plaintiff brought a blanket motion to exclude all surveillance and Facebook evidence at the outset of the trial, which the judge granted. The Court of Appeal criticized that decision saying the exclusions should be made in a piecemeal manner, whereby the exclusion of one Facebook photo, for instance, does not necessarily mean the exclusion of all. Further, the motion, the Court of Appeal said, should typically be made after the plaintiff has testified and been set up in cross-examination.

In terms of how personal injury lawyers should prepare their clients for anticipated evidence arising from surveillance and/or social media channels like Facebook, Gilbert thinks that explaining the importance of language is key. She says that personal injury lawyers can minimize the risk of impeachment through proper preparation of their clients, including explaining the significance of “absolute language”, particularly in the context of litigation. Whereas, in colloquial conversation, a person might say he or she “can’t bend down” when what is really meant is that the person has difficulty bending down (i.e. due to pain or stiffness), in the context of personal injury litigation, the difference in language can be critical when it comes to preserving the Plaintiff’s credibility.  She says, “You don’t want to minimize, nor do you want to exaggerate…Remind your clients that the evidence will speak for itself, they don’t need to convince anyone of their injury.”

Lawyers also need to stay on top of pre-trial disclosure around surveillance and Facebook, because even if it’s introduced solely to impeach at trial and not also as substantive evidence, it can still be catastrophic. Lawyers need to ask at discovery whether there is surveillance, what the full particulars of that surveillance are, and request disclosure of the existence and particulars of any after-acquired surveillance.

Finally, she thinks lawyers need to target where they’re going to challenge this evidence. Pick and choose your battles, deal with them one at a time,” Gilbert says. “You may be better off if a particular excerpt of surveillance doesn't show a major inconsistency with your client’s testimony. It may not win favour with jurors if the big “ah ha!” moment they were waiting to see like they may be used to from tv shows did not turn out to be much of a smoking gun at all.”

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