Responding to Social Media Discovery Objections

While seemingly still a modern marvel, social media as we know it today is actually entering its teenage years. Facebook launched in 2004, Twitter in 2006, Instagram in 2010. Posts, tweets, grams and snaps have entirely different meanings in today’s lexicon than they did a decade ago. And social media’s footprint is ever-expanding—as of the third quarter of 2017, Facebook had more than 2 billion monthly active users, up from 1 billion in 2012. Despite its ubiquity, many people—including plaintiffs in personal injury lawsuits—continue to share information on their social media accounts that can be a boon to defense counsel but disastrous to their own claims.

Not surprisingly, many plaintiffs now object to any discovery requests seeking social media information on grounds including overbreadth, vagueness and violation of the right to privacy. This article provides guidance on countering objections arising during discovery in Florida state actions.

One of the first cases defense attorneys should rely upon is the Fourth District Court of Appeal’s opinion in Nucci v. Target Corp., 162 So.3d 146 (Fla. 4th DCA 2015), in which the plaintiff slipped and fell in a Target store. Prior to the plaintiff’s deposition, defense counsel saw that her Facebook profile contained 1,285 photographs. When photographs seemingly disappeared after the plaintiff’s deposition, the defendant moved to compel inspection of the plaintiff’s Facebook profile. The plaintiff argued such access was overbroad and would violate her right to privacy. After the trial court denied its motion, the defendant filed narrower discovery requests. The trial court ultimately compelled the plaintiff to produce, among other things, all photographs associated with the account for the two years prior to the incident to the present. Seeking certiorari relief, the plaintiff sought to quash the trial court’s order compelling production of the photographs, arguing the order violated her right to privacy.

In a thorough opinion that cited to and adopted reasoning from courts across the country, the Fourth District denied the plaintiff’s petition for certiorari and upheld the trial court’s order. Notably, the Fourth District held that, generally, photographs on a social networking site are not privileged, nor are they protected by any right of privacy, regardless of the privacy settings a user elects to establish on their account. Because the information shared on a social networking site can be copied and disseminated by another user, the Fourth District wrote, “[t]he expectation that such information is private, in the traditional sense of the word, is not a reasonable one.”

Some plaintiff attorneys have adapted to the Nucci decision and now argue that, at most, the opinion only permits discovery identical to that discussed in Nucci—social media photographs preceding a date of loss by no more than two years. Defense attorneys can expect objections to any social media-related discovery requests that exceed those contemplated by the Nucci court. When responding to such objections, defense attorneys should be prepared to argue that Nucci does not limit social media discovery solely to photographs; it allows for the discovery of social media evidence that is relevant and reasonably calculated to lead to the discovery of admissible evidence.

Importantly, the Fourth District only contemplated still images in Nucci because they were the subject of the discovery dispute. Nevertheless, as support for its general conclusions, the Fourth District relied on cases involving the discovery of social media materials beyond photographs. See Patterson v. Turner Constr. Co., 88 A.D.3d 617 (N.Y. App. 2011) (holding that “postings” on a plaintiff’s Facebook account, if relevant, are not precluded from discovery because the plaintiff utilized privacy settings); Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012) (holding that “material” posted on a private Facebook page is generally not privileged or protected by privacy claims); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012) (compelling the production of social media communications between the plaintiff and defendant employees related to the lawsuit). Arguments that a court should allow relevant and reasonably calculated photographs originating from a social media account, but not, say, text-based writings, are not only logically inconsistent with Nucci, but they are also internally inconsistent with Florida Rule of Civil Procedure 1.280(b)(1), which allows “[d]iscovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.”

As with any discovery request, defense attorneys should be careful to limit their requests only to relevant and “reasonably calculated” information. Carefully crafted interrogatories and requests for production may make it more difficult for plaintiffs to prevent the discovery of social media information and more likely that defense attorneys are provided access to information that initiates a favorable resolution of their clients’ cases.

*Joey is an associate in our Orlando, Florida office who can be reached at 407.505.4680 or jmchindamo@mdwcg.com.

_{Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}