If it’s not on Facebook, did it even happen? Notices to Produce and the Legitimate Forensic Purpose Test

19 September 2019

In this social media era, Facebook, Instagram, Twitter and Snapchat have all become integral forms of communication. Whether people are posting pictures of their brunch, uploading photos of celebrations, using Facebook marketplace as an alternative to holding a garage sale, or posting a status, tweet or Instagram story, about the latest occurrence in their lives, for many people, their social media accounts provide an insight into their day to day activities.

In TPD and IP claims based on psychological injuries, and, especially, where symptoms of the psychological injury include social avoidance and being reclusive with  an inability to communicate and interact easily with other people, social media records have been integral in assisting a court to determine the relevant question. For example, in TAL Life Ltd v Shuetrim, MetLife Insurance Ltd v Shuetrim [2016] NSWSCA 68, the Court of Appeal held, after reviewing his Facebook records, that Mr Shuetrim had exaggerated his symptoms (including his reduced ability to deal with people or attend crowded venues), to the extent that his overstated self-report to psychiatrists’ wrongly impacted their opinions.

Recent case law has provided guidance on the ‘best practice’ for issuing a Notice to Produce to a claimant during court proceedings. In Gavan v FSS Trustee Corporation [2019] NSWSC 667 (Gavan), the Court compelled the plaintiff to produce her private Facebook records under a Notice to Produce.

Ms Gavan, a former police officer, submitted a TPD claim with the insurer, claiming that she suffered chronic post-traumatic stress disorder and major depressive disorder. Ms Gavan also claimed that she was antisocial and reclusive. During the determination of the claim, the insurer obtained an external investigations report, which provided an analysis of Ms Gavan’s publicly available Facebook records. These records showed that Ms Gavan attended various events, travelled overseas, had competed various courses (including an underwater diving course with over 20 other participants) and that she had been advertising and selling various items to members of the public.

The insurer’s Notice to Produce satisfied the legitimate forensic purpose test, as the Facebook records had “obvious relevance1 to the question of whether the plaintiff had exaggerated her symptoms and whether she satisfied the relevant TPD test. The Court accepted that the notice was not a fishing expedition, as the insurer had obtained the external report, and was able to point to the inconsistencies between Ms Gavan’s claimed disability and her public social media records as the basis for issuing the Notice to Produce. Ms Gavan was ordered to produce her private Facebook records, including posts, messages, status updates and photos from the date she last worked with the NSW Police Force to date.

It is now widely accepted that social media material can be relevant in assessing  claims, however, it is important to note that, caution should be taken if the main purpose of requiring the production of documents is to challenge a witness in cross examination (which appears to be accepted in A v Z [2007] NSWSC 899). As demonstrated in Gavan, an insurer seeking a Notice to Produce of social media records needs to demonstrate that the documents are relevant to the proceedings and that the insurer has a tangible basis for requesting the documents (i.e. an external report or other material which supports a conclusion that the documents called for production will materially assist the insurer’s case – in this matter that there were inconsistencies between the plaintiff’s self-report and social media activities). If these tests are not met, the Notice to Produce may be struck out for being a fishing expedition or not satisfying the legitimate forensic purpose test.

This article was written by Matthew Harding, Partner, Sylvia Quang, Special Counsel and Tayla Gee, Solicitor.

1 Gavan v FSS Trustee Corporation [2019] NSWSC 664 at [55].

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