February 5, 2015, Trial News | The American Association For Justice Archive

February 5, 2015, Trial News

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Fla. court rules right to privacy does not shield Facebook photos from discovery

Alyssa E. Lambert

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Gil C / Shutterstock.com

A plaintiff has a “limited privacy interest, if any,” in pictures posted on social networking sites, regardless of privacy settings, according to a Florida appellate court. The court held that the plaintiff must produce more than five years’ worth of Facebook photos as part of discovery in a slip-and-fall lawsuit against Target Corp.

A Florida appellate court has held that a plaintiff must produce more than five years’ worth of Facebook photos as part of discovery in a slip-and-fall lawsuit against Target Corp. The court concluded that the plaintiff has a “limited privacy interest, if any,” in pictures posted on social networking sites, regardless of her privacy settings. (Nucci v. Target Corp., 2015 WL 71726 (Fla. 4th Dist. App. Jan. 7, 2015).)

As courts grapple with what information is discoverable during litigation, attorneys said this decision is part of a new trend finding that plaintiffs have no expectation of or right to privacy in social media.

In 2010, Maria Nucci slipped on a substance on the floor of a Target store. She and her husband sued the big-box retailer and the cleaning and maintenance companies for her resulting neck, shoulder, and back injuries. She underwent a cervical diskectomy and fusion surgery and is restricted in her daily activities. Nucci objected to disclosing her Facebook photos during her deposition in 2013. The defense noted that before Nucci’s deposition, she had 1,285 photos on her Facebook page; two days later, she had only 1,249. Target moved to compel inspection of her Facebook profile.

Nucci argued that she had a reasonable expectation of privacy because her Facebook account had a privacy setting that prevented the general public from accessing her page and that the defendant’s request was “an overbroad fishing expedition.” The trial court denied the defendant’s motion, and Target filed narrower discovery requests. The plaintiffs objected, and Target conceded its production request should be limited to photos depicting Nucci, not all her Facebook photos. The trial court ordered the plaintiffs to produce copies or screenshots of such photos from all Nucci’s social media accounts from two years before the injury until the present. Nucci was also ordered to produce all photos for the same time period from all her cell phone accounts.

The plaintiffs appealed the portion of the court order regarding social networking discovery, arguing that “the mere hope” that disclosure yields relevant evidence is an insufficient reason to order such broad discovery. Target countered that its requests were reasonable and that “the trial court did not grant unfettered access because it did not compel the production of passwords to her social networking accounts.”

Noting that the scope of discovery in civil cases in Florida is broad, and a discovery order would be overturned only if the court abused its discretion in granting it, the Florida Court of Appeals held that “the relevance of the photographs [to the lawsuit] overwhelms Nucci’s minimal privacy interest in them.” The court held that the photos Target seeks “are powerfully relevant to the damages issues” and that relevance was enhanced because postaccident surveillance of the plaintiff suggests “that she may not be an accurate reporter of her pre-accident life or of the quality of her life since then.”

The court also ruled that Nucci’s privacy settings on Facebook were immaterial. “The expectation that such information is private, in the traditional sense of the word, is not a reasonable one,” the court wrote.

Atlanta attorney Mark Zamora, who lectures on social media issues and represents plaintiffs in personal injury cases, said decisions like this are going to be “the new normal” for personal injury and medical malpractice litigation. “You are going to see the advent of self-created surveillance,” he said. “Facebook and social media discovery and what they reveal are ultimately going to be as important as MRIs and cat scans in personal injury cases.”

Zamora said that some states, such as Pennsylvania, are ahead of the curve in creating law in this area, and that the law is evolving at “lightning speed.”

Plaintiffs are also having to play catch-up. “What is troubling is that the defense is far ahead of plaintiff lawyers on the subject in terms of the arguments they are making and getting around the curve,” Zamora said.

To combat these challenges, Zamora said attorneys need to advise their clients about potential social media issues and be proactive early on. “Sit down with your clients at the first meeting and tell them that everything they post on the Internet is public. Don’t allow them to argue that they have the highest privacy settings on their accounts,” he said. “Look at their Facebook pages like you would an accident report—and figure out what you should give to the defense and what you should fight about.”