A Picture is Worth a Thousand Words

Facebook users beware! Social media lovers should think twice before posting their favorite hiking picture, post-marathon photo, or any picture that might compromise a case in a pending litigation.  In Nucci v. Target Corp., a recently decided case in Florida, the Court of Appeals held that your social media posts and photographs may be relevant evidence, admissible during litigation. 

Judges are becoming increasingly willing to order disclosure of social media content for litigation purposes. In Nucci, the plaintiff, Maria Nucci was involved in a slip and fall inside a Target store.  Nucci claimed damages for personal injuries and emotional distress.

Before deposing Nucci, Target’s attorney noted that her Facebook profile listed 1,285 photographs, but these photos could not be viewed since she had her profile set to “private.” Since her emotional and physical condition were at issue in the case, Target requested access to her Facebook photos. During the deposition, Target requested Nucci disclose these photographs, but she denied the request.  Soon after the deposition, Target’s attorney noticed that the number of photographs listed dropped to 1,249.  Target sought a court order directing Nucci produce all Facebook photographs from two years prior to the date of incident through present day.  The court granted the order and Nucci appealed. 

Florida’s legal standard for discovery requests states any information that “appears reasonably calculated to lead to the discovery of admissible evidence,” should be granted, including electronically stored information. The Court of Appeals explained that since Nucci was seeking intangible damages, it was important to determine her quality of life before and after the accident to reach a true determination losses suffered.  The court stated:

“It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life. If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality.”

Therefore, the court ruled that the photographs were “powerfully relevant” to the damages portion of the case. Also, the court stated the requested time frame was sufficiently limited and not a “fishing expedition” – where relevant evidence might accidently be discovered in an overly broad discovery request. 

As to Nucci’s privacy interests, the court ruled that the relevance of her photographs greatly outweighed Nucci’s minimal privacy interest.   Nucci argued that she had a legitimate expectation of privacy in her photographs since her Facebook profile was set to “private.” However, the court was not convinced and explained that photographs posted on a social media site are neither privileged or protected by any right of privacy, regardless of the privacy settings established by the user.  After all, the court pointed out that the very nature of these social media sites is to share photographs with others, and so a user cannot later claim a legitimate expectation of privacy. 

While this case was heard in Florida, it is important to be cautious with social media postings, especially photos, which may have a damaging impact on pending or future litigation.  Remember, a picture is worth a thousand words!

ALG is staying well-informed of these and other Internet law and Intellectual Property law related matters to make sure we can properly counsel our clients. If you have any questions regarding this or any other Internet law or business law related matters, please contact Antoine Law Group, APC.

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