With a significant percentage of the population utilizing social media today, defense attorneys defending personal injury lawsuits are now using social media networking sites to access information – potential evidence – that they otherwise would not have access.

Florida Courts continue to struggle with disputes involving such efforts as defense attorneys push to discover this ‘evidence’, and personal injury attorneys push to protect their clients right to privacy.

In Florida, those investigating a lawsuit may obtain evidence in any method they choose. (Fla. R. Civ. P. 1.280(b)(1).)  Since most information on a person’s social networking site is not privileged, the focus of the discovery analysis falls on the relevancy of the requested material. Courts may permit discovery of social media content so long as the request is narrowly tailored and comports with the discovery standard. See Capco Props., LLC v. Monterey Gardens of Pinecrest Condo., 982 So.2d 1211 (Fla. 3d DCA 2008).

Oftentimes, however, parties serve requests seeking a vast amount of content, and, in some cases, the party to whom the discovery is served is asked to produce his or her username and password. In response to these types of requests, the court in McDonald’s Rests. Of Fla., Inc. v. Doe, 87 So.3d 103 (Fla. 2d DCA 1994), stated that the rule allowing a party to request production “is not designed to afford [an] avenue to pry into [an] adversary’s business or to go on a fishing expedition…” Likewise, parties do not have an entitlement to “carte blanche discovery of irrelevant material.” See Life Care Ctrs. of Am. v. Reese, 948 So.2d 830 (Fla. 4th DCA 2007).

Permitting the requesting party access to the adversary’s entire social media account is one of the most intrusive methods of discovery. The American Bar Association has analogized this to traditional discovery, stating that it would be the “equivalent of granting access to a litigant’s entire office merely because a relevant file is stored there.” Disfavoring this idea of direct access, many courts have held that a blanket request for login information is per se unreasonable.

In Trail v. Lesko, No. GD-10-017249 (Pa. C.C.P. July 3, 2012), the court explained, “To enable a party to roam around in an adversary’s Facebook account would result in the party to gain access to a great deal of information that has nothing to do with the litigation and cause embarrassment if viewed by persons who are not ‘Friends.’” See also Levine v. Culligan of Fla., Inc., Fla. 15th Cir. Ct. Jan. 29, 2013.  In Levine, the Court held that a party does not have a generalized right to rummage at will through information that the opposing party has limited from public view, particularly when the party’s request is not limited in time and content.

Another concern that non-requesting parties have is the right to privacy, which is expressly afforded by the Florida Constitution. This right “ensures that individuals are able to determine for themselves when, how, and to what extent information about them is communicated to others.”  Shaktman v. State, 553 So.2d 148, 150 (Fla. 1989).  However, the hurdle that parties have to get over is the determination whether a legitimate expectation of privacy exists in the first place. Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So.2d 544, 547 (Fla. 1985). If so, courts must engage in a balancing test, weighing the need for the discovery against the privacy interests.

As of recently, requesting parties are relying on the opinion in Nucci v. Target Corp., 162 So.3d 146 (Fla. 4th DCA 2015), where court held that, despite the level of privacy settings used, an individual only has a “minimal” expectation of privacy in his or her social media account. By the time Nucci was in front of the Fourth District, however, the defendant had narrowed its social media request twice before including only photographs depicting the plaintiff from a limited period. The defendant was not asking the court to order the text of private messages or the plaintiff’s username and password.

The court in Nucci also went on to recognize that a party must still show that the requested information is relevant and reasonably calculated to lead to admissible evidence. It distinguished Nucci from Root v. Balfour Beatty Construction, LLC, 132 So.3d 867 (Fla. 2d DCA 2014), in which the plaintiff was ordered by the trial court to produce a much broader list of Facebook material without any limitation, including postings, statuses, photographs, and videos.

The Second District held that although social media evidence may generally be discoverable, the discovery ordered was overbroad and compelled the production of irrelevant personal information. Quoting the second district in Root, the court in Nucci conceded that it was this type of carte blanche irrelevant discovery that the Florida Supreme Court has sought to guard against.

As with any case involving any legal issue, there are always two sides that can be argued. It’s up to you and your attorney to use the rules to your advantage. In the meantime, it might be in your best interest to err on the side of caution and decrease your social media activity while your case is pending.

Chelsie M. Lamie is a personal injury attorney in Safety Harbor, Florida.  If you or a loved one have been injured in a car accident, call 727-501-3464 for a free consultation.  You can also learn more about Attorney Lamie by visiting www.chelsielamie.com.

© 2017 Chelsie M. Lamie, P.A.

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