Nucci v. Target Corp., 162 So. 3d 146, 151 (Fla. 4th DCA 2015)
The plaintiff brought a personal injury action against the retail store alleging that she slipped and fell on a foreign substance on the floor.
The Seventeenth Judicial Circuit Court, compelled discovery of photographs from the customer’s social media accounts. The Plaintiff petitioned for writ of certiorari relief to quash a December 12, 2013 order compelling discovery of photographs from her Facebook account.
In the original complaint, the Plaintiff alleged the following:
- Suffered bodily injury
- Experienced pain from the injury
- Incurred medical, hospital, and nursing expenses, suffered physical handicap
- Suffered emotional pain and suffering
- Lost earnings
- Lost the ability to earn money
- Lost or suffered a diminution of ability to enjoy her life
- Suffered aggravation of pre-existing injuries
- Suffered permanent or continuing injuries
- Will continue to suffer the losses and impairment in the future
The Defendant took the plaintiff’s deposition on September 4, 2013. Before the deposition, the Defendant’s lawyer viewed the plaintiff’s Facebook profile and saw that it contained 1,285 photographs. At the deposition, the Plaintiff objected to disclosing her Facebook photographs. The defendant’s lawyer then examined the Plaintiff’s Facebook profile two days after the deposition and saw that it listed only 1,249 photographs, in which the Defendant then moved to compel the inspection of the plaintiff’s Facebook profile and asked her not to further destroy any information posted to her social media websites.
The defendant argued that they were entitled to view the profile because the Plaintiff claimed in her lawsuit that both her physical and mental condition was at issue. The Plaintiff claimed that she had used a privacy setting to prevent the general public from having access to her account and that she had a reasonable expectation of privacy regarding the information on her profile. She argued the Defendant’s motion would invade her privacy right and was an overbroad fishing expedition.
The District Court of Appeal held that the order compelling discovery of the photographs depicting the Plaintiff from two years prior to the date of her alleged slip and fall to the present was reasonably calculated to lead to the discovery of admissible evidence. The relevance of the photographs outweighed any privacy interests despite the fact that the general public could not access them. Therefore, postings on the Plaintiff’s online Facebook account, if relevant, were shielded from discovery merely because the Plaintiff used the service’s privacy setting to restrict access to them.
Here, the photographs sought were powerfully relevant to the damage issues brought forth the lawsuit. The relevance of the photographs was enhanced because the post-accident surveillance videos showed the Plaintiff carrying heavy bags, jugs of water, and doing other physical acts, suggesting that her claim of serious personal injury was suspect.
The court noted that 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 occurrence of an accident-causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here were thus powerfully relevant to the damage issues in the lawsuit. The relevance of the photographs was enhanced, because the post-accident surveillance videos of the plaintiff suggest that her injury claims are suspect and that she may not be have been an accurate reporter of her pre-accident life or of the quality of her life since the accident.
The petition was denied.
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