Lawsuits, Discovery, and the Right to Privacy In the Context of Social Media

A party’s “right to privacy” in the context of social media is the subject for numerous motions in civil litigation.  The scenario goes like this:  Plaintiff sues defendant, alleging injuries.  Defendants seeks discovery of Plaintiff’s social-media content, such as photos, posts, and comments, in the hopes of disproving liability and/or damages.  Plaintiff claims right to privacy in social-media content.  Court must decide.logo_from_dev

Because these cases are so fact specific, it can be difficult to extract a single principle or set of guidelines from their holdings.  But a recent case from an appellate court in Florida is a terrific example of the basic balancing act.

In Nucci v. Target Corp., the plaintiff claimed to have suffered physical injuries while shopping at a Target store.  Target sought to discover photographs of the plaintiff from her Facebook account going back two years before the incident through the present.  Target claimed that the photos would go to the quality of the plaintiff’s life before and after the accident to determine the extent of her loss.

The trial court agreed and ordered the plaintiff to produce the pictures.  The plaintiff appealed.  On appeal, the court examined in detail the balance between a party’s “right to privacy” and another party’s right to take broad discovery in civil litigation.  In the end, the appellate court agreed with Target and upheld the trial court’s ruling, ordering the plaintiff to produce the photographs.  I agree with the court’s ruling and find some of the points made in its opinion to be of particular interest.  Here are a few highlights.

First, unlike most states, individuals in Florida have a constitutional right to privacy.  In Delaware and most other states, there is no such right.  There is a federal constitutional right of privacy but that extends only to actions taken by the government.  So, for example, in Delaware, in order to claim privacy as a basis to avoid similar discovery, it would have to be the government seeking to obtain the pictures.  Thus, the Florida court had to address the privacy issue as an additional step over and above what would be protected in most other states.

With respect to privacy, the court explained that the right of privacy does not attach unless and until there is a “legitimate expectation of privacy.”  Here, the court concluded 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 agreed with other courts that have found that there is no “special privilege” or other protections for content shared via social-networking site.

Second, the court recognized the potential value of information and evidence shared via Facebook or other similar site.  The court explained that, particularly in a personal-injury claim,

. . . 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 . . .

Thus, the court held, the photographs sought by Target were “powerfully relevant” to the issue of damages.

This decision is so thoughtful and well written that it is, in my opinion, a leading example for other courts to follow when faced with decisions about what can and should be produced during litigation from a party’s social-networking accounts.

Nucci v. Target Corp., No. 4D14-138, 2015 Fla. App. LEXIS 153 (Fla. Ct. App. 4th Dist. Jan. 7, 2015).

See also:

How NOT to Produce Facebook Evidence

Waiver of Attorney-Client Privilege Via Facebook

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Discovery and Preservation of Social Media Evidence

Court Finds Duty to Preserve Personal Emails of Employees

Discovery of Social-Media Passwords

Delaware Chancery Ct. Finds No Privilege for Email Sent from Work Account

Employer Failure to Preserve Employee Social-Media Evidence

Is There a Reasonable Expectation of Privacy In Your Tweets?

EEOC Sanctioned for Failure to Produce Social-Media Evidence

Employees Must Turn Over Facebook Info For Harassment Claim

Discovery of EEOC Claimants’ Social-Media Posts

Call Me, Maybe. Discovery of Employee Identities

Spoliation of Facebook Evidence

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