Christopher Doll KC
We all have confidential records of one sort or another. For some of us it is a diary or journal, for some it is medical or employment records, and for others it may be social media posts. When a claim is made for personal injury, what records must be disclosed?
If you have a personal injury claim, you may hesitate when you learn what documents the insurance company expects you to hand over. You may worry the documents are irrelevant, embarrassing, or even harmful to your case. The reality is that, in an injury claim, there will be documents you are obligated to disclose regardless of whether you are comfortable with it or not. It simply comes with the territory.
You may also be surprised to learn what constitutes a “document.” For the purposes of the Supreme Court of British Columbia, the term has a very broad meaning and includes everything from photographs and films to sound recordings and information you have posted on social media. A document also includes data stored on electronic devices, such as a computer or a cell phone.
It can be useful to think of your duties of disclosure in three stages:
- Once you Make a Claim
- When you Initially Commence Litigation
- When the Other Side asks for More Information
Once you Make a Claim
Once you make a claim under your insurance policy, you automatically have certain disclosure obligations toward ICBC. These obligations exist regardless of whether you decide to start a lawsuit or not. They stem from what is called duty of utmost good faith and require you to provide ICBC with any information that is pertinent to your claim. If you fail to do so or if you willfully provide inaccurate information, it may invalidate your coverage. Not only will this leave you empty-handed, it may also open you up to a claim of fraud.
When you Initially Commence Litigation
Once you file a lawsuit you will need make a list of every document that you intend to refer to at trial, as well as every document in your “possession or control” that can be used to “prove or disprove a material fact.”
Even if you are not physically in possession of a document, but have the power to obtain it (e.g. through a request to your bank for statements), then it is considered to be in your “control” and you must disclose it. A “material fact” refers to any issue that is in dispute in the lawsuit and that, if resolved, will have legal ramifications for the parties. For example, if your claim includes damages to an expensive jacket, the value of the jacket would be a material fact. Therefore, a photograph of you wearing the jacket earlier in the day before it was damaged would likely need to be disclosed as evidence of the condition, and therefore, the value of the jacket.
There are also certain documents for which you may be able to claim “privilege.” For example, since communications between you and your lawyer are privileged, you would not have to disclose emails between you. Documents created for the purpose of litigation are also privileged.
It is important to note that the other side cannot use any documents that you disclose for any purposes other than the litigation of your claim.
When the Other Side asks for More Information
You have an ongoing obligation to disclose documents. That means, after your initial disclosure, you must continually update the opposing party if you become aware of additional documentation that ought to be disclosed. Conversely, the other side may become aware of other documents and request them from you.
Determining what must be disclosed and when can be tricky, so it is best to leave that to your lawyer. Give your lawyer all the information and documents you can think of – including things that you may not ordinarily consider, such as diaries, journals, and your business and tax records – and let them decide what must be disclosed. If you simply cannot agree with your lawyer about what should be disclosed, you can rest assured that your lawyer is not permitted to share any documents without your permission.
