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Alerts & Publications

Monday, January 26, 2015

Photographs Posted on Facebook are Discoverable

By Esther E. Galicia

The Fourth District in Nucci v. Target Corp., --- So. 3d ----, 2015 WL 71726, 40 Fla. Law Weekly D166 (Fla. 4th DCA Jan. 7, 2015), recently held that photographs posted on a plaintiff’s social media sites are discoverable if relevant to the litigation. Additionally, social network account holders have a limited privacy interest, if any, in pictures posted on their social networking sites.

The plaintiff in Nucci claimed that she slipped and fell on a foreign substance on the floor of a Target store and sought to recover the standard gamut of personal injury damages. Before deposing the plaintiff, Target’s lawyer viewed the plaintiff’s Facebook profile and saw that it contained 1,285 photographs. At the deposition, plaintiff objected to disclosing her Facebook photographs. Target’s lawyer examined the plaintiff’s Facebook profile two days after the deposition and saw that it listed only 1,249 photographs (36 less pictures).

Target moved to compel inspection of the plaintiff’s Facebook profile and asked that she not destroy further information posted on her social media websites. Target argued that it was entitled to view the profile because the plaintiff’s lawsuit put her physical and mental condition at issue. The trial court ultimately granted Target’s motion in part, limiting production to photographs depicting the plaintiff from the two years before the date of the incident to the present. The plaintiff sought certiorari review.

On appeal, the Fourth District found no departure from the essential requirements of law and denied the plaintiff’s petition. In so holding, the Nucci court stated: “We agree . . . 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.” Id. at *6. “Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships.

Facebook itself does not guarantee privacy.” Id. “By creating a Facebook account, a user acknowledges that her personal information would be shared with others. . . . ‘Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.’ ” Id. The Fourth District further observed that “[b]ecause ‘information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another,’ the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.” Id.

Finally, the Fourth District rejected the plaintiff’s argument that the Stored Communications Act, 18 U.S.C. §§ 2701–2712, applied to this case. While that Act “prevents ‘providers’ of communication services from divulging private communications to certain entities and/or individuals,” the court in Nucci concluded that it “does not apply to individuals who use the communications services provided.” Id. at 7.

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