Photo of Eric Alexander

This post strays from our usual posts in a few respects.  First, it is about a Florida state intermediate appellate court opinion in a slip and fall case.  You will not find us posting on many of those.  Second, while we do post on discovery issues, it is usually about the scope of discovery that can be pursued against drug and device manufacturers.  This is about discovery on the plaintiff, which is less common (but not unique).  Third, and most significantly, this is about social media, specifically something called “Facebook.”  We understand that many, many people who are young, social or both—we (in the singular form of that pronoun sometimes utilized in our posts) are neither—spend quite a bit of time with their Facebooking.  Indeed, this Facebook thing is so popular that it has taken on several verb forms.  Based on our research, but not personal experience, many spend large parts of their waking time updating their “friends” (as the term is used broadly) on details of their life, reviewing posts/updates from others, and adding value to society by “liking” or commenting on what others have posted.  Sometimes, these Facebookers post photographs of themselves doing all sorts of things, including things that rational people might not memorialize through digital photography, let alone share with others through a medium where everything pretty much lasts forever.  Some of these photo-posting Facebookerists happen to be plaintiffs in civil litigation.  Hence, this post.

Nucci v. Target Corp., No. 4D14-138, 2015 WL 71726 (Fla. App. 4 Dist. Jan. 7, 2015), is far from the only opinion on the discoverability of Facebook photos and posts that a party to litigation would prefer the other side not see, but it does lay out things nicely.  The facts of Nucci are scant, so we will embellish them.  The plaintiff was walking through her neighborhood Target, distracted by the abundance of red bullseyes, when she slipped (tripped?) and fell.  Being a
careful woman, she sought medical care to ensure that her apparent lack of injuries was not illusory.  Being really careful, she decided to sue Target for her injuries, which her lawyer and lawyer’s favorite doctor had convinced her entitled her to substantial compensation.  The defendant, also being careful, obtained surveillance videos of plaintiff carrying heavy stuff and generally not seeming to have the injuries her lawsuit claimed.  (We pause to allow the reader to deal with the inevitable shock from reading this embellished recitation.)  In connection with the plaintiff’s deposition, the defendant’s careful lawyers noticed that plaintiff had 1285 photos associated with her Facebook account and, magically, had 36 less two days after the deposition.  A discovery dispute ensued, with—shortening the sequence some—plaintiff refusing to produce the photos on her Facebook that showed her from two years before her Target fall to present because they were “private,” just like the name of the setting she had used to keep Target or others from just pulling the photos directly from the internet.  (Apparently, Senator Ted Stevens was wrong and there are no tubes.)

We assume that a sampling of the photos, with corresponding comments, went something like this:

  • Pre-accident photo of plaintiff on crutches with her comment “Hurt my knee.  The crutches are the most upper body exercise I have had in years.”
  • Post-accident, but pre-suit, photo of plaintiff running up stadium steps with a log on her shoulders.  She comments “Tripping and falling at Target-what a klutz‼!–really motivated me to get in shape.”  Friend replies, astutely, “Wow.”
  • Post-accident, but pre-suit, photo of plaintiff, noticeably in better shape, unleashing a vicious forehand in tennis.
  • Post-accident, but pre-suit, photo of plaintiff engaged in MMA-style sparring with a large male opponent.  Friend comments “OMG, was that Hafthor Bjornsson you kicked in the face?”
  • Post-suit photo of plaintiff, sporting a neck brace and shoulder sling, with the comment “Check out the gear I just scored from my lawyer.  You remember my Target accident last year?  LOL.”
  • Post-suit photo of plaintiff juggling bowling balls with the comment “This is a secret, but too funny not to share.”  Friend responds “You should pay Target for getting your life together.  Great to see how much better your life is now.  I won’t tell a soul,” followed by an emoticon of a “winky face.”

If our imagination hit anywhere near the mark, it is not hard to see why the defendant, judge and jury would have liked to see these photos and the plaintiff would have fought to keep them locked away.  The court ordered them produced and plaintiff sought interlocutory review.  (Plaintiff did not fight as hard to hide her cell phone photos—yes, people do take and send dumb photos without utilizing Facebook.  We can only guess that photos were not quite as damning, perhaps because of less accompanying commentary.)

The appropriateness of production came down to two basic issues:  1) relevance and 2) privacy.  Relevance was pretty clear.

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.

2015 WL 71726, *4.  As anybody who has seen a plaintiff-produced “day in the life” presentation knows, reality does tend to get manipulated to play up damages.  While people may present a particular version of reality through their own social media posts—like the lightly-doctored photo we have seen of Bexis having lunch with Learned Hand, J.K. Rowling, and Abner Doubleday—the rules of discovery do tend to require production of seemingly relevant stuff and leave it to a party to explain it.

The analysis of the claims of privacy required a little more attention.  Plaintiff had a harder road than she might have because she did not claim that disclosure of any particular photo would cause her damage or embarrassment.  Id. at *3.  Keeping something private, as we learned back in Con Law in the last millennium, requires that there be a legitimate expectation of privacy in the first place.  The Nucci court reviewed many cases from around the country generally finding that even restrictive privacy settings used for photos posted to social networking sites do not create an expectation of privacy.  Facebook apparently disclaims privacy of photos posted to/through it, as users must acknowledge that their personal information may be shared at the discretion of Facebook or pursuant to a court order.  Id. at ** 3 & 6.  As the court put it, “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.”  Id. at *6 (internal quotation and citation omitted).  So, the trial court was right to order plaintiff to cough up her Facebook photos for a reasonable time period.  The next chapter will probably be if the 36 “deleted” photos can be recovered and, if not, whether the spoliation instruction will allow the jury to assume that the plaintiff was depicted doing any of the stuff we assumed above.

* * *

This case came to us from Dave Walz at Carlton Fields in Tampa.