Judges Increasingly Allow Discovery of Private Facebook Content

By Heather Antoine
April 23, 2015

Justice gavel and laptop computer keyboardSocial media lovers beware! Think twice before posting your next status update, your favorite hiking picture, post-marathon photo, or any picture that might compromise a case in a pending litigation.  Two recent cases explore the expanding use of social media accounts during litigation.

In Florida, the Court of Appeals held that social media posts and photographs are relevant and admissible evidence. In Nucci v. Target Corp., the plaintiff, Maria Nucci was involved in a slip and fall inside a Target.  Nucci claimed damages for personal injuries and emotional distress. Target’s attorney noted that her Facebook profile listed 1,285 photographs; all set to “private.”  Target requested the plaintiff produce her Facebook photos at the time of her deposition; she denied the request.  Soon after the deposition, counsel for Target noticed that the number of photographs listed dropped to 1,249.  Target then sought a court order directing Nucci to produce all Facebook photographs from two years prior to the date of incident through present day.  The court granted the order and Nucci appealed.

Florida’s legal standard for discovery requests provides that any information that “appears reasonably calculated to lead to the discovery of admissible evidence,” should be produced, including electronically stored information (“ESI”).  Here, the Court of Appeals explained that since Nucci was seeking intangible damages, it was important to determine her quality of life before and after the accident to reach a true determination of losses suffered, stating:

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 occurrence of an accident causing injury.

As to Nucci’s privacy interests, the court ruled that the relevance of her photographs greatly outweighed Nucci’s minimal privacy interest.   Nucci argued that she had a legitimate expectation of privacy in her photographs since her Facebook profile was set to “private.”  However, the court was not convinced and explained that photographs posted on a social media site are neither privileged nor protected by any right of privacy, regardless of the privacy settings established by the user.  After all, the court pointed out that the very nature of these social media sites is to share photographs with others, so a user cannot later claim a legitimate expectation of privacy.

Meanwhile in Louisiana, an employee brought suit against his employer claiming he suffered a workplace injury. Crowe v. Marquette Transp. Co. Gulf-Inland, LLC. During investigations, Crowe’s employer discovered that he had admitted, via Facebook message, that he was injured on a fishing trip. Not surprisingly, on October 17, 2014, the employer requested Crowe produce copies of his entire Facebook account. On October 21, 2014, Crowe deactivated his Facebook account and responded to the request stating he did not “presently have a Facebook account.” The court eventually forced Crowe to turn over the 4,000 archived pages, stating:

The Court is troubled by Crowe’s refusal to produce any responsive documents on the basis of the statement that he did not presently have a Facebook account. The records indicate that Crowe did not delete his account but deactivated it. It is readily apparent to any user who navigates to the page instructing how to deactivate an account that the two actions are different … Crowe’s efforts to avoid producing this material have unnecessarily delayed these proceedings and have wasted the time of his opponent and this Court.

While these matters originated in Florida and Louisiana, they follow a string of decisions across the country that reinforce the importance of caution when posting on social media.

These issues are not relegated to the personal injury and worker’s compensation worlds. Consider Ingrid & Isabel, LLC v. Baby Be Mine, LLC, 2014 WL 1338480 (N.D. Cal. April 1, 2014), where the plaintiff argued that defendant’s product, Belly Band was confusingly similar to their trademark, Bella Band. The court compelled production of all customer comments on the defendant’s Facebook and Twitter accounts regarding the Belly Band as evidence of the trademark infringement. Also consider, Charter Practices Int’l, LLC. v. Robb, 2014 WL 273855 (D. Conn. Jan. 23, 2014), where a medical management company sued a former franchisee for breach of contract. The court in that matter compelled the franchisee to produce all Facebook communications relating to a protest the franchisee organized.

This is not an open and shut case, however, and courts continue to grapple with a variety of issues such as: scope, threshold of relevance, possession and control of the posts, and whether any of the communications are covered under the Stored Communications Act. But, a trend is emerging. And as social media pages land front and center in courtrooms across the country, companies and individuals must become increasingly cautious of their activity online.

The Author

Heather Antoine

Heather Antoine is the founder of Antoine Law Group, APC. Her practice is focused on the intersection between Internet law and intellectual property. Heather is primarily a litigator handling trademark/copyright infringement matters, cyber defamation, domain disputes, and privacy torts. She also counsels companies on setting up and maintaining their IP portfolios, privacy and FTC regulations, and drafts app/website agreements such as terms of use and privacy policies.

Heather is a regular speaker on hot topics in Internet law, technology, cyber security, and IP law. She has been named a Super Lawyer Rising Star and Top Attorney. Heather is currently serving as the Program Chair for the California State Bar Intellectual Property Section's Technology, Internet, and Privacy Interest Group. Heather can be reached at hantoine@antoinelaw.com.

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There are currently 1 Comment comments.

  1. Night Writer April 23, 2015 5:11 pm

    This is not really a surprise. A facebook photo that all your friends can look at (and save and re-post or show to anyone on their screens) isn’t really private.