In brief - Insurer successfully establishes legitimate forensic purpose for issuing notice to produce Facebook records

Arising in the context of a Total Permanent Disablement (TPD) insurance claim, Gavan v FSS Trustee Corporation [2019] NSWSC 667 found for compliance of a notice to produce issued on "all records" from the plaintiff's Facebook account. The ruling found that issuing a notice to produce on the plaintiff's Facebook records must be complied with if there is a legitimate forensic purpose behind issuing the notice. 

In this instance, the plaintiff alleged that she was unable to return to work due to her mental health state and the severity of her condition. The Judge ruled that it was reasonable for the defendant to test the plaintiff's claim by seeking reference to her social activity on Facebook and comparing it with the veracity of the claimed severity of her symptoms that limit her from returning to work. Noting that whilst the notice to produce calls for documents over a lengthy period time, it is reasonable that if there was deterioration (or improvement) of the plaintiff's mental condition and symptoms over this period of time then this would be reflected on her Facebook account.

Facebook records include (but is not limited to) all "posts", "status updates", "check-ins", "messages", "photo uploads", "tagged" photos and comments made by and/or "tagging".

As to the volume of the documents produced, the Court recognised that Facebook provides for a relatively simple way in which the material can be produced, thus the request was not deemed oppressive or, as the law refers to it, "a fishing expedition".

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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