Wednesday, June 17, 2015

Trial & Litigation Section: Social Media Discovery - Does Nucci Open the Flood Gates?

By Charles T. Moore

Every day presents a reminder that we live in the age of Big Data. Scan the daily headlines and you will see a story of hackers pulling off the largest data heist in history or a leaked report of the NSA sifting through emails of every American. The corollary to this age of Big Data is the age of little privacy. Our courts are falling in line. The court in Nucci v. Target Corporation, 2015 WL 71726 (Fla. 4th DCA Jan. 7, 2015), delved into the subject of privacy for users of social media and concluded that our right to privacy is smaller than many of us thought.

In Nucci, the court was presented with a petition for writ of certiorari on an order compelling discovery of the plaintiff’s photographs from her Facebook account. The order compelled production of all photographs on the plaintiff’s social media sites for two years before and after the incident. The order did not limit the request even to photographs just of the plaintiff. Importantly, the court noted that the plaintiff objected only generally to the request on privacy, relevancy, burdensomeness, and overbreadth grounds and did not object to any specific photographs or state any specific concerns of privacy as to any particular photograph or class of photographs. The court upheld the trial court’s order compelling the production. It reasoned that such photographs are “powerfully relevant” to proving the quality of a plaintiff’s life before and after an injury. In what some social media users might characterize as a facile understanding of how social media sites are used, the court compared Facebook photos to a “day in the life video.” Finally, the court concluded that there is no right to privacy in Facebook photographs no matter how restrictive the user’s privacy settings on Facebook.

The case should be an eye-opening reminder to users of social media. The indelible data imprint left by social media and other forms of online data may one day be used in contexts for which the data were not intended. But the case should be limited to its facts and to the limited focus of the objections on appeal.

A case that places some important limitations on social media discovery requests is Root v. Balfour Beatty Construction LLC, 132 So. 3d 867 (Fla. 2d DCA 2014). Root involved a mother who brought a personal injury claim for her daughter who was struck by a contractor’s truck near a construction site. The defendant served a discovery request that sought all social media postings related to the mother’s relationship with her daughter and her other children, her relationship with other family members or boyfriends, and mental health stressors both before and after the accident. The trial court compelled the production, and the mother petitioned for certiorari. The Second District granted certiorari and reversed the order. It held that the request was the type of carte blanche discovery that should be limited to relevant matters. Such requests must be more specific to pass muster. 

Social media is fair game in discovery as long as the requests are focused and limited to likely relevant matters. The lawyer defending against such social media requests should ensure such requests are appropriately focused and should be prepared to educate the uninitiated jurors to the context of Facebook and other social media posts.