Insurance companies and their defense attorneys seek any shred of evidence to discredit plaintiffs. Facebook and other social medial have become a fertile field for this type of evidence.
Personal injury cases include claims for economic and noneconomic damages. Facebook photographs and comments can contradict these claims. Photographs from the Aspen snow trip and comments about dancing the night away on South Beach can be inconsistent with claims of intractable pain and work limitations.
Posting things on Facebook as “Private” or “Friends Only” does not protect the information from being discovered by the other side in litigation. In Nucci v. Target Corp., So. 3d , 40 FLW D166a (Fla. 4th DCA 1-7-15), the plaintiff’s challenge of the trial court’s order requiring the production of photographs of her posted on Facebook before and after the accident was denied by the Fourth DCA. The court rejected Nucci’s right to privacy provision objection under the Florida Constitution, ruling that the photographs sought were reasonably calculated to lead to the discovery of admissible evidence and the privacy interest in them was minimal, if any.
Nucci should not be read as granting carte-blanche to the discovery of everything posted in social media. Under the basic principles for evaluating discovery in Florida, the party seeking discovery must establish that it is (1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court. Fla. R. Civ. P. 1.280(b)(1) and Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). This standard was applied in Root v. Balfour Beatty Construction, LLC, 132 So. 3d 867 (Fla. 2d DCA 2014), to quash in part a lower court order requiring the production of Facebook material unrelated to the accident or damages claimed.
While the photographs and comments posted on social networking sites are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established, traditional discovery rules continue to apply their discovery. Lawyers are advised to tailor requests and consider objections accordingly.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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