Information posted behind privacy settings on social media is no longer considered inadmissable in court as more and more judges are compelling plaintiffs to produce the information requested by defendants. Below is a summary of an interesting, recent Florida case against Target filed by a plaintiff who objected to providing photographs posted to her Facebook account during discovery in a slip and fall personal injuries case.

Venue: Fourth District Court of Appeal of the State of Florida

Plaintiffs: Maria F. Leon Nucci and Henry Leon, represented by Greenspoon Marder P.A. 

Defendant: Target Corp. et al, represented by Vernis & Bowling of Broward, PA. 

Photographs posted to Facebook

Attorneys for defendant, Target, successfully defended a Writ of Certiorari in a case where a personal injury plaintiff objected to providing photographs which she had posted to Facebook.

The plaintiff, who was making a claim for personal injuries, mental anguish, and pain and suffering, was allegedly involved in a slip and fall incident that occurred at a Target store. The defendant sought to compel the production of the photographs posted to the plaintiff’s Facebook account and provided the trial court with evidence from video surveillance showing the plaintiff participating in activities which called into question the true extent of the injury the plaintiff was claiming. The plaintiff objected, but the trial court overruled the plaintiff’s objections and ordered the production of any photographs which the plaintiff posted on her social media accounts as well as on her cell phone.

Related: Looking behind the curtain: Social media evidence and ethical discovery

The plaintiff immediately appealed and filed the Writ to the Fourth District Court of Appeals with regard to her social media postings only, and did not address the ruling as it related to her cell phone. In the Writ, the plaintiff claimed that her Facebook settings were set to “private” and therefore the trial court’s order unconstitutionally invaded her right to privacy and violated the Federal Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712.

Judge and lawyers in a courtroom

(Photo: Shutterstock)

Privacy interest minimal

In its 11-page detailed opinion, the appellate court ruled that the photographs being sought were reasonably calculated to lead to the discovery of admissible evidence as they are “powerfully relevant to the damage issues in the lawsuit” and further stated that “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.”

Related: Think before you Facebook

The appellate court further agreed with the defendant’s position that the plaintiff’s privacy interest in such posted photographs was minimal, if any. The court stated that “before the right to privacy attaches, there must exist a legitimate expectation of privacy” and that they “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.”

The court held that the expectation that such information shared through social networking websites is private is not a reasonable one. As the Court aptly stated, “Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.”

As to the plaintiff’s claim regarding the Stored Communications Act (S.C.A.), 18 U.S.C. §§ 2701-2712, the Court ruled that the S.C.A. had no application to this case. The Court stated that “generally, the SCA prevents ‘providers’ of communication services from divulging private communications to certain entities and/or individuals…The act does not apply to individuals who use the communications services provided” and “does not preclude civil discovery of a party’s electronically stored communications which remain within the party’s control even if they are maintained by a non-party service provider.”

This is a case of first impression in Florida State court. Before this ruling, the trial courts throughout the State of Florida varied significantly in terms of what was discoverable. There is now a bright line for the courts to follow with this ruling.

Thomas Paradise, Esq. (TParadise@Florida-Law.com) and Nicolette John, Esq. (NJohn@Florida-Law.com) are based in the Hollywood, Fla., office of Vernis & Bowling of Broward, Pa.