4th DCA Holds That There is Minimal Privacy Interest in Social Media Accounts
On January 7, 2015, Florida’s Fourth District Court of Appeal held that plaintiff in a personal injury suit has a limited privacy interest in his or her social networking site. See Nucci v. Target, ___ So. 3d ___, 2015 WL 71726 (Fla. 4th DCA Jan. 7, 2015). The three judge panel recognized that the discovery sought—photographs posted on the Plaintiff’s Facebook account—was highly relevant. Moreover, the Court held that under the broad scope of discovery in civil cases, the trial court’s order was not an abuse of discretion.
Plaintiff filed a negligence suit against Target stemming from a slip and fall incident at a local Target store. Plaintiff alleged that she suffered bodily injury, incurred medical expenses, pain and suffering, lost earnings, among other damages. Prior to Plaintiff’s deposition, counsel for Target viewed Plaintiff’s Facebook profile. At that time, Plaintiff’s profile had 1,285 photographs. Two days after taking Plaintiff’s deposition, counsel for Target again viewed Plaintiff’s Facebook profile. This time, her profile listed only 1,249—thirty-six photographs were no longer displayed on the social media site.
Shortly thereafter, counsel for Target filed a motion to compel the inspection of plaintiff’s Facebook profile. Further, Target sent Plaintiff a preservation letter asking that other information on her social media websites be preserved. At the hearing on Target’s Motion to Compel, Target presented the trial court with surveillance video depicting Plaintiff “walking with two purses on her shoulders or carrying two jugs of water.” Thus, Target argued that Plaintiff physical condition was at issue and the surveillance video raised concerns regarding the extent of Plaintiff’s injuries. Target argued that Plaintiff’s photographs on her social media accounts were relevant to the issue of her alleged injuries and her physical condition. The trial court held that Target’s initial request was “vague, overly broad and unduly burdensome.”
After the trial court’s ruling, Target filed more narrowly tailored discovery requests—four Electronic Media Interrogatories and nine Requests for Production of Electronic Media. At the hearing on plaintiff’s objections to Target’s discovery requests, the trial court granted the motion in part and denied it in part. The trial court compelled the plaintiff to (1) identify all social networking sites to which she was currently registered, (2) list her cell phone number and cell phone carrier, (3) produce copies or screenshots of all photographs associated with her social networking account during the two years prior to the subject incident; (4) produce copies or screenshots of all photographs associated with her social networking account from the date of loss to the present; and (5) copies of telephone calls made or received on the date of loss.
The Fourth District Court of Appeal held that the trial court’s order did not depart from the essential requirements of the law. The appellate court recognized while parties are not entitled to carte blache discovery of irrelevant evidence, the scope of discovery in civil cases is broad and ultimately within the trial court’s discretion. Further, the Fourth District Court of Appeal found that the relevance of the photographs outweighed the plaintiff’s minimal privacy interest in the same. In so holding, the Court noted that postings on a social networking site are not protected by a right to privacy regardless of the user’s privacy settings because by the mere nature of social networking sites, one shares his or her personal information with others. Therefore, one cannot allege that he or she has a “reasonable” expectation of privacy when the information he or she posts on social media can be shared and further disseminated by others.
Social media discovery can also affect defendants. Nowadays, it is common for companies to use social media for marketing purposes. For example, a company’s social media page may contain certain information regarding a product, its warnings, or specifications. Similarly, employees may have social media accounts, which go unmonitored by the entity. An employee’s social media page may reveal discoverable information that may be harmful to the entity’s interest. For more information on how to obtain social media evidence and adequately preserve the same, refer to: Social Media Evidence: What You Can’t Use Won’t Help You -- Practical Considerations for Using Evidence Gathered on the Internet, http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/78eec84889b66af085257c4a0073203a!OpenDocument&Highlight=0,*