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“Facebook Privilege”

The Privacy Interest That Doesn’t Exist, but Most People Think They Have

In the last decade or so, Facebook and other social media has taken over as the main way many people in the U.S. communicate. Forty years ago, people would share their vacation photos with friends using slide projectors. They would wish their friends “happy birthday” with a Hallmark card. They’d plan parties and send out paper invitations by U.S. Mail to the houses of their respective invitees. The existence of Facebook has changed all that.

Now, users post everything from their vacation pictures to what they ate for breakfast. They use their Facebook pages to keep up with friends, family, old schoolmates, and colleagues. They use Facebook invites to plan parties and events.

But Facebook is more than just a tool for sharing information about ourselves. It is also a tool that people can use to get information about the everyday lives of users. Sitting behind a computer screen seems to give some people a false sense of security, even though what they post online is usually open to public view. The user must take steps to limit access to their social media pages, and many do.

After all, we should be able to share pictures of general mischief and debauchery with our close friends without having everyone else in the world bear witness to it, right?

Many people would be surprised to know that even setting your Facebook page to “Friends Only” and limiting access to your page won’t protect the privacy of the information you upload online.

By placing the quality of her life at issue in her personal injury case, a plaintiff placed almost everything she posted on her Facebook page at issue as well. Nucci v. Target Corp.,    So. 3d    , 40 FLW D166a (Fla. 4th DCA 1-7-15).

The trial judge issued an order compelling production of every photograph associated with the plaintiff’s social media accounts from two years before the accident through the present day. The page contained over 1200 photographs in total.

The defense had surveillance video of the plaintiff carrying a purse on each shoulder and of the plaintiff carrying water jugs (at less than 10 pounds a-piece) in each hand. Thus, the plaintiff’s claim for permanent injuries was suspect – or so the defendant argued. The court described the requested photographs as “the equivalent of a ‘day in the life’ slide show produced by the plaintiff before the existence of any motive to manipulate reality,” and thus, “powerfully relevant” to the damage issues.

Although the plaintiff argued that her constitutional right to privacy protected her postings from discovery, the court found no basis for that in Florida or federal law. For the last few years, federal district courts have found that information on “private” Facebook pages are neither privileged nor protected. And in Florida, another district court held nearly a year ago that social media evidence is discoverable. See Root v. Balfour Beatty Construction, LLC, 132 So. 3d 867 (Fla. 2d DCA 2014).

The Nucci court found that the discovery requests there were arguably calculated to lead to admissible evidence. The photographs, the court said, were highly relevant to the plaintiff’s physical condition before and after the accident. And because the relevance of the photographs greatly outweighed the plaintiff’s “minimal privacy interest” in them, the trial court did not abuse its discretion in allowing discovery of the plaintiff’s Facebook postings.

However, it sounds like there might have been more the plaintiff could have done to prevent discovery of irrelevant evidence. We have to assume, for example, that none of the photographs are damaging or embarrassing. The court specifically commented on the plaintiff’s failure to claim damage or embarrassment as a result of producing the photographs, and treated that as a basis for finding no material harm.

It’s also unclear whether an in camera inspection was requested to avoid irrelevant discovery – something suggested by the Second DCA in Root.

It’s easy to get caught up in the apparent invasion of “privacy” – to take a client’s sincere expectation of privacy of their social media to heart and try and fight the battle on that front. But Nucci is clear that plaintiffs’ lawyers need to be careful to avoid that red herring. Discovery of social media evidence is no different from any other type of discovery.

While many people may not “like” these decisions, the take-away is an important one for plaintiffs’ lawyers.

There is no special “Facebook privilege” that attaches when we switch our profiles to “friends only.” The law treats the conversations we have through a screen exactly the same as it would the conversations we have in person or on paper. It treats and pictures we post online exactly the same as pictures we post on a corkboard or put in an album to show to our friends.

And as Florida lawyers practicing in this dawning digital age, so should we.