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Discoverability of Social Media

Firm attorney Megan R. Heiden provides insight that discovery disputes involving social media sites have become increasingly common over the last several years. A previous post by firm attorney Nicholas Morcom discussed the 2014 decision by Florida’s Second District Court of Appeal in Root v. Balfour Beatty Construction, 1302 So. 3d 867 (Fla. 2d DCA 2014), which denied a requesting party’s Facebook “fishing expedition” because information sought was unrelated to the complaint or any affirmative defense.

More recently, in Nucci v. Target Corp., 2015 WL 71726 (Fla. 4th DCA 2015), Florida’s Fourth District Court of Appeal addressed the issue of social media discovery and provided additional guidance on the permissible scope of such discovery.

The plaintiff, Mrs. Nucci, claimed she had suffered permanent bodily injury because of a slip and fall at Target. Target sought discovery of photographs from Mrs. Nucci’s Facebook page because she had put her physical and mental condition at issue. Mrs. Nucci responded that (i) her Facebook page was set to “private” to prevent the public from viewing her photographs and (ii) she had a reasonable expectation of privacy for her Facebook page, which would be violated if Target were granted access.

The trial court initially ruled that Target’s request for production of Mrs. Nucci’s entire Facebook page was overly broad, vague and unduly burdensome. After Target responded by serving a narrower request for production, the trial court compelled Mrs. Nucci to produce the requested social media information. Mrs. Nucci petitioned for certiorari, claiming that the trial court’s order requiring her to produce social media information was a departure from the essential requirements of law.

The Fourth District Court of Appeal declined to grant cert. The court held that “photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of the privacy settings that the user may have established.” The court also distinguished the Second District Court of Appeal’s opinion in Root and noted that, unlike the overly broad and irrelevant discovery requests at issue in Root, Target’s discovery requests to Mrs. Nucci were narrow in scope and calculated to lead to admissible evidence.

The Nucci case confirms that plaintiffs who have put their physical and mental condition at issue by suing are not entitled to keep all social media information private. Discovery of a plaintiff’s social media information is appropriate where the discovery requests are narrow in scope and are reasonably calculated to lead to the discovery of admissible evidence.

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