July 9, 2015

Social Media and the Law: are my Facebook Posts Discoverable?

Categories: Litigation Tactics, Working with your attorney

Let the Tampa litigation attorneys help you understand your privacy rights!

Like most Americans, you probably share a large portion of your life online. You take a trip to the lake and snap a few pictures of yourself soaking up the sun, splashing in the water, and maybe drinking a few beers…then post those pictures for your select group of “Facebook Friends.” You’ve been careful to set high privacy settings on your account so that current or future employers can’t see you making a fool of yourself, but you want to share your crazy life with the people who matter most.

Beware: those people could include opposing counsel and, possibly, members of a future jury.

This last January, Florida’s Fourth District Court of Appeal made that clear. In Nucci v. Target Corporation, 2015 WL 71726 (4th DCA 2015),the Court upheld the trial court’s order requiring the plaintiff in a slip and fall case to turn over photographs that she had posted on her social media accounts. Specifically, the plaintiff had to turn over to the defendant Target all photographs posted on her accounts from two years before her  fall through the present.

Though the Court considered plaintiff Nucci’s argument that her Facebook posts were on a high privacy setting, it ultimately rejected her reasoning, explaining that the “relevance of the photographs overwhelms Nucci’s minimal privacy interest in them.” Indeed, the opinion cited to earlier cases that allowed discovery of personal social networking information and 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.”

There are, fortunately, some limitations. As with all other discovery requests, opposing counsel still must show that the social-media postings and photos being sought are relevant to the case. Not everything in your social media accounts can be snagged. .

In the Nucci case, the Court ruled that three-plus years of personal photographs were relevant because the plaintiff was claiming that her slip and fall had caused permanent injuries and had drastically changed her lifestyle. Target had obtained surveillance video of Nucci carrying heavy jugs and bags, so the Court was satisfied that her photographic self-history was a relevant source of evidence about how she’d lived her life both before and after the incident.

If you are concerned that your social media posts could be damaging in litigation, it is best to consult with an experienced attorney. At Wagner, McLaughlin & Whittemore, we can help you understand all aspects of your rights to privacy – and the limitations on those rights if and when a lawsuit proves necessary. Contact us today for a free consultation.

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