If You Post It, Your Opponent Can Probably Discover It

In March we ran a post on how important videos, photographs, and statements on social media sites can be when investigating a property loss.  A picture is literally worth a thousand words.  Earlier this month, a Florida court explained that such material is also discoverable – even in situations where the policyholder employs privacy settings that prevent the general public from having access to his or her account – because the user’s privacy interest in such a site is “minimal, if any.”  Nucci v. Target Corp., – So.3d –, 2015 WL 71726, 2015 Fla. App. LEXIS 153 (Fla.Dist.Ct.App., Jan. 7, 2015) involved a slip-and-fall, but it applies with equal force to discovery in a first-party matter.

Maria Nucci filed a personal injury action against Target, alleging that she fell on “a foreign substance” on the floor of one of the defendant’s stores.  Her complaint contended that she sustained permanent injuries, aggravated pre-existing ones, and also experienced lost earnings and emotional pain and suffering.  Prior to her deposition, Target’s attorneys reviewed her Facebook profile and found that it contained 1,285 photographs.  She was questioned about some of them at the deposition itself, and she promptly took three dozen of the pictures down.

Target moved to compel.  After a hearing, the trial court ordered production of “copies or screenshots of all photographs associated with” any social networking account that Ms. Nucci was currently registered with from two years prior to the date of loss until the present.  The plaintiff then sought certiorari review from Florida’s intermediate level appellate court.

Earlier this month, a unanimous panel denied the petition.  As Judge Robert M. Gross’ opinion explained, one reason was that “certiorari review is available in only a narrow class of cases and [Ms. Nucci’s] case does not meet the stringent requirements” for that remedy.  The judges also denied the petition, however, because the Facebook pictures were “highly relevant” and, most significantly, because it held that Ms. Nucci had “but a limited privacy interest, if any, in pictures posted on her social networking sites.”

With respect to relevance, Judge Gross explained the court’s rationale as follows:

In a personal injury case where the plaintiff is seeking intangible damages, the fact-finder is required to examine the quality of the plaintiff’s life before and after the accident to determine the extent of the loss.  From testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff’s life was like prior to an accident. It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life.  If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit.

With respect to privacy, the panel held that “the relevance of the photographs overwhelms Nucci’s minimal privacy interest in them.”  As Judge Gross noted, before the right to privacy attaches, “there must exist a legitimate expectation of privacy.”  Ms. Nucci argued that she had just such an expectation because her Facebook page had been on a privacy setting that prevented the general public from accessing her account.  The court was unconvinced, however, explaining that the very nature of a social networking site such as Facebook effectively rules out such an expectation.  According to the opinion:

We agree with those cases concluding that, generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established.

*  *  *

Because information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another, the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.