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[1]               In cross-examination of the plaintiff, the defendant in this personal injury action sought to rely on approximately 20 posts from the plaintiff’s Facebook page (the “Posts”) and, ultimately, to have the Posts entered as substantive evidence.  The plaintiff objected to cross-examination based on the Posts.

[5]               Through inadvertence (a) a copy of the disc was not provided to counsel for the plaintiff and (b) the materials retrieved were not made the subject of a supplementary affidavit of documents in the name of the defendant.  It was not until after cross-examination of the plaintiff began that counsel for the plaintiff was made aware that materials from the plaintiff’s Facebook page had been retrieved in accordance with the Agreement.  Similarly, counsel for the defendant was not previously aware that postings retrieved had not been provided in accordance with the Agreement.

[21]           I find that the defendant’s inadvertence with respect to the failure to disclose the Facebook materials retrieved constitutes less than ‘full and rigorous compliance’ with the disclosure and production obligations pursuant to both the Rules of Civil Procedure and the Agreement.

[22]           I agree with the plaintiff that to proceed in the manner proposed by the defendant would result in prejudice to the plaintiff:

•         It would not be sufficient to allow the plaintiff time to review only the Posts prior to resuming her cross-examination.  Fairness would require that she be given an opportunity, prior to continuing the cross-examination, to review all of the materials retrieved (hundreds if not more than a thousand pages of documents).

•         The interruption required to facilitate that review would be inefficient, disruptive, and have an impact on trial fairness.

•         The plaintiff’s expert who has already testified would not have an opportunity to review and/or comment, as may be required, upon the contents of the Posts.

•         The plaintiff’s other experts, including participant experts, would not have a reasonable opportunity for review and comment, the latter if necessary, upon the contents of the Posts.

[23]           It is simply too late in the litigation process for the defendant to be entitled to rely on the Posts as Schedule “A” documents.  Disclosure and production of the documents was required at an earlier stage in the litigation.