Are Facebook Photos Protected by Privacy Rights in eDiscovery?
In the personal injury lawsuit Nucci v. Target, No. 4D14-138 (Fla. Dist. Ct. App. Jan. 7, 2015), Plaintiff appealed to the District Court of Appeal of Florida to quash a lower court’s order compelling Plaintiff to produce photographs from her Facebook account.
Before deposing Plaintiff, defense counsel noted that Plaintiff’s Facebook profile contained 1,285 photographs. At Plaintiff’s deposition, Plaintiff objected to Defendant’s request that she produce her Facebook account photographs, citing privacy grounds. Two days after the deposition, defense counsel noted that the number of photographs on Plaintiff’s profile had decreased to 1,249.
Because the case involved Plaintiff’s mental and physical health (both before and after her slip and fall accident at a Target store), Defendant asserted that all her Facebook photographs were relevant and, thus, discoverable. Plaintiff argued that she had a privacy right to the photographs and that the request for all her Facebook photographs was overbroad.
The lower court considered the issue, and ordered that Plaintiff produce her Facebook photographs from the two years before the accident. Plaintiff filed a petition for certiorari to quash the discovery order regarding the Facebook photos.
The District Court of Appeal of Florida denied Plaintiff’s petition on the following grounds:
- First, certiorari is only available for discovery orders where : 1) the lower court departed from essential requirements of law, 2) the order resulted in material injury for the remainder of the case, and 3) the injury could not be corrected on post-judgment appeal (none of which the appellate court found applied here).
- Second, the appellate court must apply the highly deferential “abuse of discretion” standard of review.
- Third, the scope of discovery is broad, and “a photograph is worth a thousand word” (especially where the photographs could be “powerfully relevant” to the issue of damages).
- Fourth, the relevance of the photographs overrode Plaintiff’s “minimal” privacy interest given that even privacy settings cannot fully protect images from the public, meaning that “[t]he expectation that such information is private, in the traditional sense of the word, is not a reasonable one.”
- Fifth, the Stored Communications Act did not prevent the lower court from ordering production of the photographs.
Accordingly, Plaintiff must obey the lower court’s order and produce the Facebook photographs despite her privacy concerns.
Did you know? Attorneys are subject to sanctions for advising clients to “clean up” social media accounts. See, e.g., Lester v. Allied Concrete Co., 83 Va. Cir. 308 (Va. Cir. Ct. 2011).