By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC

An appellate court has recently issued an important case permitting discovery of information posted to a private Facebook account. In Nucci v. Target Corporation, 2015 WL 71726 (Fla. 4th DCA January 7, 2015), the Plaintiff alleged she was injured in a slip and fall accident at a Target store. Target disputed the extent of Plaintiff’s injuries. While preparing for Plaintiff’s deposition, Target’s lawyer discovered Plaintiff’s Facebook profile. Plaintiff’s privacy settings did not allow the general public to view the profile.

Target requested Plaintiff to produce the photographs contained in her Facebook account. Plaintiff objected, claiming that because the profile was protected by privacy settings and was not published to the general public, she had a reasonable expectation of privacy regarding material posted to her Facebook account. Target disagreed, arguing that the photographs were relevant to showing Plaintiff’s quality of life before and after the incident. The trial court agreed, and ordered Plaintiff to produce all photographs depicting Plaintiff that were posted to her Facebook profile in the two years before the incident and at any time since the incident. Plaintiff appealed, seeking to overturn the trial court’s discovery order.

The appellate court agreed that the photographs contained on Plaintiff’s Facebook were discoverable. The Court held that Plaintiff’s Facebook photographs were relevant to Plaintiff’s injury claims because the photographs would allow a comparison of her physical condition and quality of life before the date of the incident with her physical condition and quality of life since the incident. In Florida, the scope of discovery is broad, allowing discovery of materials that are reasonably calculated to lead to the discovery of admissible evidence. In this case, the court determined that the scope of discovery was properly limited, given that the request was restricted to the time period from two years before the incident until the present day, and that Target only sought production of photographs that depicted Plaintiff. The court also noted that Plaintiff did not claim that any particular photograph would cause her damage or embarrassment.

The Court rejected Plaintiff’s argument that she had a reasonable expectation of privacy for the materials posted to her Facebook account. There is no right of privacy under Florida law unless a reasonable expectation to privacy exists. In civil litigation, a court must balance a party’s privacy interests against the relevance of the materials. The court found that there is generally no right of privacy to photographs posted on social networks such as Facebook, regardless of any privacy settings established by the user. The court reasoned that by creating a Facebook account, a user acknowledges that personal information posted to the site will be shared with others, as information shared on Facebook can be easily copied and disseminated by a user’s “friends” that do have access to the profile. Thus, the court concluded that the relevance of the photographs overwhelmed Plaintiff’s minimal privacy interest in the photos.

This case establishes parameters for discovery requests related to Facebook and other social media sites. If the information is relevant to the issues of the case, and the request is limited in time and scope, generally, 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, and are therefore discoverable in litigation.

About the Authors: Richard E. Guttentag is a partner with Stearns, Roberts & Guttentag, LLC, and is Board Certified in Construction Law by the Florida Bar. Mr. Guttentag concentrates his practice exclusively in construction law including construction lien claims and defense, payment and performance bond claims and defense, bid protests, construction contract preparation and negotiation, and construction and design defect claims and defense. He can be reached for consultation at [email protected]. Roberts & Guttentag, LLC. concentrates his practice in construction law including construction lien claims, payment and performance bond claims, construction contract preparation, construction and design defect claims, and appellate matters. He can be reached for consultation at [email protected].

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