Are a personal injury plaintiff’s Facebook photos discoverable evidence? According to Florida’s Fourth District Court of Appeal, they are. In a recent decision, the court held that a plaintiff had only a minimal privacy interest in photos she posted to social media websites, even though the photos were not viewable by the general public.
The plaintiff was injured when she slipped and fell in a retail store. She sued the store for compensatory damages, including pain and suffering, mental distress, and loss of enjoyment of life. At her deposition, the plaintiff objected to producing her Facebook photos. After the deposition, counsel for the defendant noticed the number of photos associated with the plaintiff’s Facebook profile decreased. The defendant asked the court to compel production of the Facebook photos. The defendant argued that, given the plaintiff’s claimed damages, it had a right to evidence that established the plaintiff’s quality of life before and after the accident.
In response, the plaintiff contended that the discovery request was overbroad and that she held a privacy interest in the photos. The trial court partly granted the motion, ordering that the plaintiff produce a list of all social media websites where she maintained an account and a list of all of the plaintiff’s cell phone numbers. The trial court further ordered the plaintiff to produce copies or screenshots of all photos associated with each social media account and cell phone number from two years prior to the accident up to the present. The plaintiff appealed.
According to Fla. R. Civ. P. 1.280(b)(1), discovery requests in Florida must be at least reasonably calculated to lead to the discovery of admissible evidence. The court reasoned that, since the plaintiff was seeking “intangible” damages, the defendant had the right to examine the quality of the plaintiff’s life before and after the accident. Therefore, the defendant’s request was not overly broad.
With regard to the plaintiff’s privacy argument, the court held that the plaintiff’s minimal privacy interest was outweighed by the photos’ relevance. The Florida Constitution provides a right to privacy, but the person asserting it must have a reasonable expectation of privacy before it attaches.
The court determined that photos posted on Facebook and other social media sites are not protected by that right, regardless of the person’s account settings. The court reasoned that a photo posted to a social media account is widely viewable — even if the person posting the photo allows only “friends” to view it — because people with access to the photo can disseminate it at their will. Therefore, any expectation of privacy is unreasonable. The photos’ relevance outweighed what little privacy right the plaintiff had.
Many experienced attorneys advise their clients to use caution when posting on social media, since courts have eroded any expectation of privacy with regard to content on these sites. The Southwest Florida injury attorneys at Lusk, Drasites & Tolisano can help you if you were injured by another person or company’s negligence in Cape Coral or elsewhere. We have the knowledge and experience to work up your case from beginning to end, and we can advise you on things such as what you can expect in terms of social media privacy. To talk to an attorney, call (800) 238-7442.
Photograph by Ruth Suehle, distributed under a CC BY-SA 2.0 license.