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If ‘friends’ can see Facebook photos, so can opposing counsel

Senior Editor Regular News

If ‘friends’ can see Facebook photos, so can opposing counsel

Senior Editor

Just because you set your Facebook privacy setting to allow only “friends” to see your photos doesn’t mean they won’t wind up as Exhibit A in court.

In Nucci v. Target Corp. , a case that “stands at the intersection of a litigant’s privacy interests in social media postings and the broad discovery allowed in Florida in a civil case,” the Fourth District Court of Appeal said the “relevance of the photographs overwhelms Nucci’s minimal privacy interest in them.”

In a January 7 order in Case No. 4D14-138, Judge Robert Gross, with Judges Matthew Stevenson and Jonathan Gerber concurring, wrote: “In a personal injury case where the plaintiff is seeking intangible damages, the fact-finder is required to examine the quality of the plaintiff’s life before and after the accident to determine the extent of the loss. From testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff’s life was like prior to an accident. It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life.

“If a photograph is worth a thousand words, 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 before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit.”

In this case, Maria F. Leon Nucci claims that on February 4, 2010, she slipped and fell at a Target store and suffered permanent or continuing injuries. When Target’s lawyer first viewed her Facebook profile, it contained 1,285 photos. At a deposition on September 4, 2013, Nucci objected to disclosing her Facebook photos and two days later, her Facebook profile listed 1,249 photos.

Target moved to compel inspection of Nucci’s Facebook profile and asked her not to destroy further info posted on social media websites. Target argued it was entitled to view the Facebook profile because Nucci’s lawsuit put her physical and mental condition at issue.

Nucci countered that her Facebook privacy setting prevented the general public from accessing her account, that she had a reasonable expectation of privacy regarding her Facebook information, and Target was on an overbroad fishing expedition. She also asserted that her private Facebook posts were covered by the federal Stored Communications Act and, therefore, not discoverable.

In siding with Target, the Fourth DCA said:

“The relevance of the photographs is enhanced, because the post-accident surveillance videos of Nucci [showing her carrying heavy bags and jugs of water], suggest that her injury claims are suspect and that she may not be an accurate reporter of her pre-accident life or of the quality of her life since then.”

In denying the petition for writ of certiorari to quash a December 12, 2013, order from Broward County Judge John Murphy, the Fourth DCA judges said the production order is not overly broad, as it is limited to two years prior to the incident to the present, and the photos are easily accessible in electronic form so complying with the order is not onerous. The court rejected the claim that the Stored Communications Act applies to this case, as it does not apply to individuals who use the communications services provided, but generally prevents providers of communications services from divulging private communications to certain entities or individuals. By creating a Facebook account, a user acknowledges personal information will be shared with others, the court said, as that is the very purpose of social networking. Facebook itself does not guarantee privacy.

“Before the right to privacy attaches, there must exist a legitimate expectation of privacy,” the court said.

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