40 Fla. L. Weekly D166a
Photographs from social networking sites such as Facebook — Trial court did not
depart from essential requirements of law by entering order compelling discovery
of photographs of plaintiff from plaintiff’s social networking account for
period commencing two years prior to accident at issue through the present —
Order was appropriately narrow in scope, and photographs sought were reasonably
calculated to lead to discovery of admissible evidence relevant to plaintiff’s
claim for intangible damages — Any expectation that information shared through
social networking websites is private is not reasonable — Stored Communications
Act, which prevents “providers” of communication services from divulging private
communications to certain entities and/or individuals, does not apply to
individuals who use the communications services provided
CORPORATION, AMERICAN CLEANING CONTRACTING, INC., and FIRST CHOICE BUILDING
MAINTENANCE, INC., Respondents. 4th District. Case No. 4D14-138. January 7,
2015. Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case No.
10-45572 (21). Counsel: John H. Pelzer of Greenspoon Marder, P.A., Fort
Lauderdale, and Victor Kline of Greenspoon Marder, P.A., Orlando, for
petitioners. Nicolette N. John and Thomas W. Paradise of Vernis & Bowling of
Broward, P.A., Hollywood, for respondent, Target Corporation.
relief to quash a December 12, 2013 order compelling discovery of photographs
from her Facebook account. The photographs sought were reasonably calculated to
lead to the discovery of admissible evidence and Nucci’s privacy interest in
them was minimal, if any. Because the discovery order did not amount to a
departure from the essential requirements of law, we deny the petition.
slipped and fell on a foreign substance on the floor of a Target store. In the
complaint, she alleged the following:
· Suffered bodily injury
· Experienced pain from the injury
· Incurred medical, hospital, and nursing expenses, suffered
· Suffered emotional pain and suffering
· Lost earnings
· Lost the ability to earn money
· Lost or suffered a diminution of ability to enjoy her
· Suffered aggravation of preexisting injuries
· Suffered permanent or continuing injuries
· Will continue to suffer the losses and impairment in the
Target’s lawyer viewed Nucci’s Facebook profile and saw that it contained 1,285
photographs. At the deposition, Nucci objected to disclosing her Facebook
photographs. Target’s lawyer examined Nucci’s Facebook profile two days after
the deposition and saw that it listed only 1,249 photographs. On September 9,
2013, Target moved to compel inspection of Nucci’s Facebook profile. Target
wrote to Nucci 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 Nucci’s lawsuit put her physical and mental condition at issue.
Facebook page had been on a privacy setting that prevented the general public
from having access to her account. She claimed that she had a reasonable
expectation of privacy regarding her Facebook information and that Target’s
access would invade that privacy right. In addition, Nucci argued that Target’s
motion was an overbroad fishing expedition.
to compel. At the hearing, Target showed the court photographs from a
surveillance video in which Nucci could be seen walking with two purses on her
shoulders or carrying two jugs of water. Again, Target argued that because Nucci
had put her physical condition at question, the relevancy of the Facebook
photographs outweighed Nucci’s right to privacy. It also argued that there was
no constitutional right to privacy in photographs posted on Facebook. The
circuit court denied Target’s motion to compel, in part because the request was
“vague, overly broad and unduly burdensome.”
discovery requests. Target served Nucci with a set of Electronic Media
Interrogatories, with four questions. It also served a Request for Production of
Electronic Media, requesting nine items. In response to the interrogatories,
Nucci objected on the grounds of (1) privacy; (2) items not readily accessible;
and (3) relevance.
additionally argued that the request was (4) overbroad; (5) brought solely to
harass; (6) “over[ly] burdensome;” (7) “unduly burdensome”; and (9) unduly
vague. Nucci raised only these general claims and no objections specifically
directed at any particular photograph.
on the motion, Target conceded that its request for production should be limited
to photographs depicting Nucci. After a hearing on the motion, the trial court
granted Target’s motion in part and denied it in part. On December 12, 2013, the
trial court compelled answers to the following interrogatories:
1. Identify all social/professional networking websites that
Plaintiff is registered with currently (such as Facebook, MySpace, LinkedIn,
Meetup.com, MyLife, etc.)
2. Please list the number and service carrier associated with each
cellular telephone used by the Plaintiff and/or registered in the Plaintiff’s
name (this includes all numbers registered to and/or used by the Plaintiff under
a “family plan” or similar service) at the time of loss and
1. For each social networking account listed in response to the
interrogatories, please provide copies or screenshots of all photographs
associated with that account during the two (2) years prior to the date of
2. For each social networking account listed in the
interrogatories, provide copies or screenshots of all photographs
associated with that account from the date of loss to
3. For each cell phone listed in the interrogatories, please provide
copies or screenshots of all photographs associated with that account
during the two years prior to the date of loss.
4. For each cellular phone listed in response to the
interrogatories, please provide copies or screenshots of all photographs
associated with that account from the date of loss to
5. For each cellular phone listed in the interrogatories, please
provide copies of any documentation outlining what calls were made or
received on the date of loss.
requirements of the law because it constitutes an invasion of privacy.1 Citing to Salvato v. Miley, No.
5:12-CV-635-Oc-10PRI, 2013 WL 2712206 (M.D. Fla. June 11, 2013), which involved
a request for e-mails and text messages, she contends that “the mere hope” that
the discovery yields relevant evidence is not enough to warrant production. She
also argues that the traditional rules of relevancy still apply to a request for
social media materials. Nucci additionally asserts that her activation of
privacy settings demonstrates an invocation of federal law. See Ehling v.
Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 665 (D.N.J. 2013).
Relying upon Ehling, Nucci argues that her private Facebook posts were
covered by the Federal Stored Communications Act (“SCA”), 18 U.S.C. §§
2701-2712, and were not therefore discoverable. We note that Nucci objected
below to all disclosure; she did not attempt to limit disclosure of the
photographs by establishing discrete guidelines. See Reid v. Ingerman Smith
LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL 6720752, at *2 (E.D.N.Y. Dec. 27,
2012); E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 436 (S.D.
show Nucci carrying heavy bags, jugs of water, and doing other physical acts,
suggesting that her claim of serious personal injury is suspect.
injury in that it allows a comparison of her current physical condition and
limitations to her physical condition and quality of life before the date of the
slip and fall. In its response to this Court, Target concedes that the order is
limited to photographs depicting Nucci from the two years before the date of the
incident to the present. It argues that the trial court did not grant unfettered
access because it did not compel the production of passwords to her social
that production of any particular photograph or other identifiable material will
cause her damage or embarrassment. Citing to Davenport v. State Farm Mutual
Automobile Insurance Co., No. 3:11-cv-632-J-JBT, 2012 WL 555759 (M.D. Fla.
Feb. 21, 2012), Target contends that the content of social networking sites is
not privileged or protected by the right to privacy. It notes that Facebook’s
terms and conditions explain that, regardless of a user’s intentions, the
material contained in a post could be disseminated by Facebook at its discretion
or under court order.
can compel a party to release relevant records from social networking sites
without implicating or violating the SCA.
social media postings and the broad discovery allowed in Florida in a civil
case. Consideration of four factors leads to the conclusion that Nucci’s
petition for certiorari should be denied. First, certiorari relief is available
in only a narrow class of cases and this case does not meet the stringent
requirements for certiorari relief. Second, the scope of discovery in civil
cases is broad and discovery rulings by trial courts are reviewed under an abuse
of discretion standard. Third, the information sought — photographs of Nucci
posted on Nucci’s social media sites — is highly relevant. Fourth, Nucci has
but a limited privacy interest, if any, in pictures posted on her social
networking sites, such as Facebook. Thus, the order compelling the answers to
interrogatories and production pertaining to a cellular phone are not at issue.
Similarly, our ruling in this case covers neither communications other than
photographs exchanged through electronic means nor access to other types of
information contained on social networking sites.
Legal Standard for Certiorari
To be entitled to certiorari, the petitioner must establish three elements: “
‘(1) a departure from the essential requirements of the law, (2) resulting in
material injury for the remainder of the case (3) that cannot be corrected on
postjudgment appeal.’ ” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla.
2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812,
822 (Fla. 2004)). The last two elements, often referred to as “irreparable
harm,” are jurisdictional. If a petition fails to make a threshold showing of
irreparable harm, this Court will dismiss the petition. Bared & Co., Inc.
v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996).
Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC,
99 So. 3d 450, 456 (Fla. 2012). Similarly, mere irrelevance is not enough to
justify certiorari relief. Certiorari may be granted from a discovery order
where a party “affirmatively establishes” that the private information at issue
is not relevant to any issue in the litigation and is not reasonably calculated
to lead to admissible evidence. Id. at 457 (quoting Allstate Ins. Co.
v. Langston, 655 So. 2d 91, 95 (Fla. 1995)); see also Berkeley v.
Eisen, 699 So. 2d 789 (Fla. 4th DCA 1997) (granting certiorari relief to
protect privacy rights of non-parties to litigation). “The concept of relevancy
has a much wider application in the discovery context than in the context of
admissible evidence at trial.” Bd. of Trs., 99 So. 3d at 458.
discretion only where the party has shown that “ ‘there has been a violation of
clearly established principle of law resulting in a miscarriage of justice.’ ”
Williams, 62 So. 3d at 1133 (quoting Haines City Cmty. Dev. v.
Heggs, 658 So. 2d 523, 527 (Fla. 1995)). The error must be serious to merit
certiorari relief. Even where a departure from the essential requirements of law
is shown, this Court may still deny the petition as certiorari relief is
The Broad Scope of Discovery
relevant to the subject matter of the pending action, whether it relates to the
claim or defense of the party seeking discovery or the claim or defense of any
other party.” Fla. R. Civ. P. 1.280(b)(1). “It is not ground for objection that
the information sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence.” Id. (emphasis added). Florida Rule of Civil Procedure
1.350(a) includes electronically stored information within the scope of
discovery.2 An outer limit of discovery is
that “ ‘litigants are not entitled to carte blanche discovery of
irrelevant material.’ ” Life Care Ctrs. of Am. v. Reese, 948 So. 2d 830,
832 (Fla. 5th DCA 2007) (quoting Tanchel v. Shoemaker, 928 So. 2d 440,
442 (Fla. 5th DCA 2006)). Because the permissible scope of discovery is so
broad, a “trial court is given wide discretion in dealing with discovery
matters, and unless there is a clear abuse of that discretion, the appellate
court will not disturb the trial court’s order.” Alvarez v. Cooper Tire &
Rubber Co., 75 So. 3d 789, 793 (Fla. 4th DCA 2011) (direct appeal of
discovery issue). It is because of this wide discretion accorded to trial judges
that it is difficult to establish certiorari jurisdiction of discovery orders.
the fact-finder is required to examine the quality of the plaintiff’s life
before and after the accident to determine the extent of the loss. From
testimony alone, it is often difficult for the fact-finder to grasp what a
plaintiff’s life was like prior to an accident. 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. The photographs sought here are thus powerfully relevant to
the damage issues in the lawsuit. The relevance of the photographs is enhanced,
because the post-accident surveillance videos of Nucci suggest that her injury
claims are suspect and that she may not be an accurate reporter of her
pre-accident life or of the quality of her life since then. The production order
is not overly broad under the circumstances, as it is limited to the two years
prior to the incident up to the present; the photographs sought are easily
accessed and exist in electronic form, so compliance with the order is not
The Right of Privacy
asserts a right of privacy. However, the relevance of the photographs overwhelms
Nucci’s minimal privacy interest in them.
See Art. I, § 23, Fla. Const. (“Every natural person has the right to be
let alone and free from governmental intrusion into the person’s private life
except as otherwise provided herein.”). This right is broader than the right to
privacy implied in the Federal Constitution. Berkeley, 699 So. 2d at 790.
The right to privacy in the Florida Constitution “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) (quoting A. Westin, Privacy and Freedom 7 (1967)).
expectation of privacy. Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of
Bus. Regulation, 477 So. 2d 544, 547 (Fla. 1985). Once a legitimate
expectation of privacy is shown, the burden is on the party seeking disclosure
to show the invasion is warranted by a compelling interest and that the least
intrusive means are used. Id. In the civil discovery context, courts must
engage in a balancing test, weighing the need for the discovery against the
privacy interests. Rasmussen v. S. Fla. Blood Serv., Inc., 500 So. 2d
533, 535 (Fla. 1987). If the person raising the privacy bar establishes the
existence of a legitimate expectation of privacy, the party seeking to obtain
the private information has the burden of establishing need sufficient to
outweigh the privacy interest. Berkeley, 699 So. 2d at 791-92.
nature of social networking sites as follows:
Social networking sites, such as Facebook, are free websites where
an individual creates a “profile” which functions as a personal web page and may
include, at the user’s discretion, numerous photos and a vast array of personal
information including age, employment, education, religious and political views
and various recreational interests. Trail v. Lesko, [No. GD-10-017249,]
2012 WL 2864004 (Pa. Com. Pl. July 5, 2012). Once a user joins a social
networking site, he or she can use the site to search for “friends” and create
linkages to others based on similar interests. Kelly Ann Bub, Comment,
Privacy’s Role in the Discovery of Social Networking Site Information, 64
SMU L. Rev. 1433, 1435 (2011).
Through the use of these sites, “users can share a variety of
materials with friends or acquaintances of their choosing, including tasteless
jokes, updates on their love lives, poignant reminiscences, business successes,
petty complaints, party photographs, news about their children, or anything else
they choose to disclose.” Bruce E. Boyden, Comment, Oversharing: Facebook
Discovery and the Unbearable Sameness of Internet Law, 65 Ark. L. Rev. 39,
42 (2012). As a result, social networking sites can provide a “treasure trove”
of information in litigation. Christopher B. Hopkins, Discovery of Facebook
Contents in Florida Cases, 31 No. 2 Trial Advoc. Q. 14 (2012).
v. Culligan of Fla., Inc., Case No. 50-2011-CA-010339-XXXXMB, 2013 WL
1100404, at *2-*3 (Fla. 15th Cir. Ct. Jan. 29, 2013) [FLWSUPP 2204LEVI].
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.
See Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-cv-632-J-JBT,
2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012); see also Patterson v. Turner
Constr. Co., 931 N.Y.S.2d 311, 312 (N.Y. App. 2011) (holding that the
“postings on plaintiff’s online Facebook account, if relevant, are not shielded
from discovery merely because plaintiff used the service’s privacy settings to
restrict access”). 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.
Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 656 (N.Y. Sup. Ct. 2010). By
creating a Facebook account, a user acknowledges that her personal information
would be shared with others. Id. at 657. “Indeed, that is the very nature
and purpose of these social networking sites else they would cease to exist.”
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. Beswick v. N.W. Med. Ctr., Inc., No.
07-020592 CACE(03), 2011 WL 7005038 (Fla. 17th Cir. Ct. Nov. 3, 2011). As one
federal judge has observed,
Even had plaintiff used privacy settings that allowed only her
“friends” on Facebook to see postings, she “had no justifiable expectation that
h[er] ‘friends’ would keep h[er] profile private. . . .” U.S. v.
Meregildo, 2012 WL 3264501, at *2 (S.D.N.Y. 2012). In fact, “the wider h[er]
circle of ‘friends,’ the more likely [her] posts would be viewed by someone
[s]he never expected to see them.” Id. Thus, as the Second Circuit has
recognized, legitimate expectations of privacy may be lower in e-mails or other
Internet transmissions. U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir.
2004) (contrasting privacy expectation of e-mail with greater expectation of
privacy of materials located on a person’s computer).
6720752, at *2 (E.D.N.Y. Dec. 27, 2012); see also Tompkins v. Detroit Metro.
Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (holding that “material
posted on a ‘private’ Facebook page, that is accessible to a selected group of
recipients but not available for viewing by the general public, is generally not
privileged, nor is it protected by common law or civil law notions of privacy”);
Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012)
(indicating that social networking site content is neither privileged nor
protected, but recognizing that party requesting discovery must make a threshold
showing that such discovery is reasonably calculated to lead to admissible
LLC, 132 So. 3d 867 (Fla. 2d DCA 2014). That case involved a claim filed by
a mother on behalf of her three-year-old son who was struck by a vehicle. Unlike
this case, where the trial court ordered the production of photographs from the
plaintiff’s Facebook account, the court in Balfour ordered the production
of a much broader swath of Facebook material without any temporal limitation —
postings, statuses, photos, “likes,” or videos — that relate to the mother’s
relationships with all of her children, not just the three year old, and with
“other family members, boyfriends, husbands, and/or significant others, both
prior to, and following the accident.” Id. at 869. The second district
determined that “social media evidence is discoverable,” but held that the
ordered discovery was “overbroad” and compelled “the production of personal
information . . . not relevant to” the mother’s claims. Id. at 868, 870.
The court found that this was the type of “carte blanche” irrelevant discovery
the Florida Supreme Court has sought to guard against. Id. at 870;
Langston, 655 So. 2d at 95 (“[W]e do not believe that a litigant is
entitled carte blanche to irrelevant discovery.”) The discovery ordered
in this case is narrower in scope and, as set forth above, is calculated to lead
to evidence that is admissible in court.
2701-2712, has any application to this case. Generally, the “SCA prevents
‘providers’ of communication services from divulging private communications to
certain entities and/or individuals.” Quon v. Arch Wireless Operating Co.,
Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev’d on other grounds by City
of Ontario, Cal. v. Quon, 560 U.S. 746 (2010) (citation omitted). The act
does not apply to individuals who use the communications services provided.
See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346, 349
(E.D. Mich. 2008) (ruling that the SCA does not preclude civil discovery of a
party’s electronically stored communications which remain within the party’s
control even if they are maintained by a non-party service provider).
petition for certiorari. (Stevenson and Gerber, JJ., concur.)
produce content from social networking sites. The petition does not challenge
that portion of the orders below pertaining to a cellular telephone.
Any party may request any other party (1) to produce and permit the
party making the request, or someone acting in the requesting party’s behalf, to
inspect and copy any designated documents, including electronically stored
information, writings, drawings, graphs, charts, photographs, phono-records,
and other data compilations from which information can be obtained, translated,
if necessary, by the party to whom the request is directed through detection
devices into reasonably usable form, that constitute or contain matters within
the scope of rule 1.280(b) and that are in the possession, custody, or control
of the party to whom the request is directed . . . .
* * *