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Nucci v. Target Corp., Finding Plaintiff’s Privacy Interest Minimal, Florida Appeals Court Orders Production of Facebook Photographs

In this personal injury case, the Plaintiff, Maria Nucci, petitioned a Florida Appellate Court for certiorari relief to quash a December 12, 2013 order which compelled production of photographs from her Facebook account. The appellate court described this case as one that “stands at the intersection of a litigant’s privacy interests in social media postings and the broad discovery allowed in Florida in a civil case.” Denying the Plaintiff’s petition for certiorari, the Court found that the photographs were, “reasonably calculated to lead to admissible evidence and the Plaintiff’s privacy interest in them was minimal, if any.”

Nucci claimed that she suffered bodily injury after slipping and falling on a foreign substance on the floor of a Target store. Among other complaints, Nucci alleged she suffered pain, incurred medical costs, lost income and suffered a diminished quality of life.

During her deposition, Nucci objected to the disclosure of her Facebook photos. In September of 2013, Target made a motion to compel inspection of Nucci’s Facebook profile and sent a letter to Nucci requesting that she refrain from destroying any information on her social media websites. Target’s counsel argued that it was entitled to view Nucci’s Facebook page as Nucci’s physical and mental state were at issue in the case. In response, Nucci claimed when she created her Facebook profile she employed the privacy setting to prevent the general public from accessing her account. Nucci claimed she had a “reasonable expectation of privacy” regarding the Facebook information and argued that Target’s access to that information was an invasion of her privacy and that Target was on a fishing expedition.

The trial court conducted a hearing on Target’s motion to compel in October 2013. At the hearing, Target argued that as the case put Nucci’s physical state at issue, the potential relevancy of the Facebook photographs outweighed Nucci’s right to privacy. Target also asserted that there was no constitutional right to privacy in Facebook photographs. The trial court denied Target’s motion to compel as “vague, overly broad and unduly burdensome.”

Target subsequently filed a more targeted discovery request. In response to the request, Nucci objected to the interrogatories on the basis of relevancy, privacy and accessibility and to the production of electronic media items on the grounds that the request was vague, burdensome and overbroad.

At the hearing on Target’s motion to disallow Nucci’s objections, the trial court ordered Nucci to answer interrogatories related to the social media sites she used and provide information on her cell phone numbers and cell carriers. With respect to the production of social media, the trial court ordered the production of photographs from her social media and cell phone accounts from two years prior to the date of the loss up the present. Nucci argued that the December 12, 2013 trial court order departed from “the essential requirements of the law because it constitute(d) an invasion of privacy.” Nucci argued that the “mere hope” that the discovery might yield relevant information is not enough to warrant production. Nucci further argued that her private Facebook posts were covered under the Federal Stored Communications Act (“SCA”), 18. U.S.C. Sec. 2701-2712 and were therefore not discoverable.

The appellate court observed that Target pointed out that surveillance videos of Nucci showed her carrying heavy items and doing other physical acts that called into question her claims of personal injury. Target asserted that the Facebook photos were relevant as they allowed for a comparison between Nucci’s current physical condition and her physical condition and quality of life before the accident. Target further pointed out that Nucci did not argue that any of the photographs or other information would cause her damage or embarrassment. Target argued that information on social networking sites is not privileged or protected by the right to privacy and noted that Facebook’s terms and conditions reflect that regardless of a user’s intention, information in a post can be disseminated by Facebook at its discretion or pursuant to a court order.

In its reasoning, the appellate court noted that in a personal injury action it is often difficult for the fact-finder to understand the quality of life of someone prior to an accident. The court observed “there is no better portrayal of what an individual’s life was like than those photographs an individual has chosen to share on social media” before the injury occurred. Those photos observed the court, present a “day-in-the-life slide show” which Nucci produced before there was a motive to “manipulate reality.” The court therefore found that the photos were “powerfully relevant” to the issues in the case and that the relevance was “enhanced” as post injury surveillance videos of Nucci brought her injury claims into question. Further, the court noted that Nucci may not be an “accurate reporter” of the quality of her life both before and after the alleged injury. The appellate court held that the production order was not overly broad, the photographs easily accessible and that compliance with the order was not “onerous.”

When rejecting Nucci’s assertion of privacy regarding the Facebook photographs, the appellate court held that the relevancy of the photographs “overwhelms” Nucci’s minimal privacy interest in them. In its reasoning, the Court agreed with prior cases which concluded that, “generally the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established, ” citing Davenport v. State Farm, No. 3:11-cv-632-J-JBT, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012) and Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311, 312 (N.Y. App. 2011). The court distinguished Facebook photographs from medical records and communications with attorneys as in those situations “disclosure is confined to narrow, confidential relationships.” The court further observed that as information posted on social media sites can be disseminated by others, the “expectation that such information is private, in the traditional sense of the word, is not a reasonable one.”

The court also rejected Nucci’s assertion that the Stored Communications Act had application in this her case, noting that it does not apply to individuals using communications services.

In denying Nucci petition for certiorari, the appellate court held,

First, certiorari relief is available in only a narrow class of cases and this case does not meet the stringent requirements for certiorari relief. Second, the scope of discovery in civil cases is broad and discovery rulings by trial courts are reviewed under an abuse of discretion standard. Third, the information sought —photographs of Nucci posted on Nucci’s social media sites — is highly relevant. Fourth, Nucci has but a limited privacy interest, if any, in pictures posted on her social networking sites.

Nucci v. Target Corp., et al, No. 4D14-138 (Fla. 4th DCA Jan. 7, 2015)

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