"Social Media"

Find this article written for and published in the Daily Business Review.

Lawyers who fail to utilize social media’s increased role in the legal profession, or who fail to properly anticipate how it may come up in litigation, do so at their own detriment. Specifically with regard to personal injury litigation, social media is playing an ever-expanding role, and its impact on the practice is certain to continue growing.

Historically, when an insurance company wanted to investigate somebody who made a claim, it was necessary to hire a private investigator to discreetly follow the claimant around town. If they were lucky, maybe the investigator could manage to get a photo of an unsuspecting claimant bending down without issue to put air in a tire, or carrying heavy groceries from the store. That photo would then be used to defend against the personal injury claim, perhaps countering allegations of the severity of the back injury that the person is claiming to have sustained.

Nowadays, through the advent of social media, the hypothetical claimant mentioned above might, by their own doing, investigate and incriminate themselves and their injury to the detriment of their own claim. That’s because a recent Florida appellate court decision has determined that, in the context of personal injury litigation, photos posted on social media can, in some instances, be discoverable.

Naturally, people post photos of themselves on their social media accounts (some more than others, like that friend who won’t stop posting selfies). Individuals are often “tagged” in other people’s photos and videos, taking part in all kinds of activities. Users can “check in” to places they visit using mobile apps on their smart phones, leaving behind a virtual trail of the places they’ve visited.

Accordingly, defense attorneys often seek production of a personal injury plaintiff’s social media accounts and their contents, which can then become the topic of litigation. Despite the growing presence of social media in the legal realm, the number of Florida appellate court decisions that have dealt with social media discovery is actually quite small, and therefore permits for creative lawyering.

The Second District Court of Appeal took up the issue of Facebook discovery in the February 2014 case of Root v. Balfour Beatty Construction. In that case, a minor child was injured when he was struck by a vehicle near a construction site. The mother of the child brought suit against the defendants on behalf of her son, and the defendants in return sought production of a wide range of content from the mother’s Facebook page. The trial court allowed this expansive discovery request, which included things like counseling, psychological and mental health care obtained by the mother, any and all postings, statuses, photos, likes or videos related to her relationships with her children, other family members and boyfriends, and any posts related to alcohol use or other lawsuits filed by the mother.

The Second DCA proceeded to quash the trial court’s discovery order, determining that this expansive request was the type of carte blanche fishing expedition of irrelevant materials which was prohibited by Florida Supreme Court precedent. The requests were directed toward the injured child’s mother, who was not per se the injured party, and the defendants could not point to anything claimed by her to support their contention that the requested information was relevant.

The defendants in Nucci v. Target Corp., a January 2015 opinion from the Fourth District Court of Appeal, took a more focused and targeted approach with their social media discovery requests, and, as a result, fared better than their counterparts in Root. In this slip-and-fall case, the defense served narrowly tailored discovery requests limited to photos dating back two years from the date of incident, and all photos subsequent to the incident of the plaintiff herself. Notably, the requests did not seek any other Facebook content.

The Fourth DCA held that the photographs sought were “powerfully relevant to the damage issues in the lawsuit.” The court further noted that the relevance of the photos was enhanced due to post-accident surveillance video of the plaintiff which already suggested her injury was suspect. The court distinguished this case from Root, finding the requests at issue to be narrower in scope and far more calculated to lead to admissible evidence. As such, discovery of these photos from Facebook was allowed.

It should be noted that the Nucci court propounded that, generally, photos 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. In other words, individuals involved in personal injury litigation should post at their own risk.

Clearly, social media is here to stay, and all lawyers should be prepared to take full advantage of all it has to offer, whether we #like it or not.
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