Discovery of a plaintiff’s posts to social networking site

Torts — Construction contractor — Failure to use reasonable
care in keeping site safe for pedestrians — Action against construction
contractor and subcontractors seeking damages for injuries minor suffered when
he was struck by oncoming vehicle in front of construction site and damages for
loss of parental consortium — Discovery — Social networking site postings —
Circuit court departed from essential requirements of law when it entered
discovery order approving magistrate’s recommendations and requiring mother to
produce copies of postings on her Facebook account, including postings relating
to counseling or psychological care obtained by mother before or after accident;
postings, statuses, photos, “likes” or videos related to mother’s relationships
with injured child or her other children; postings relating to mother’s
relationships with other family members, boyfriends, husbands, and/or
significant others; postings relating to mother’s mental health, stress
complaints, alcohol use or other substance use; and postings related to any
lawsuit filed by mother or others after the accident — Defendants failed to
meet burden of establishing that information sought was relevant to case and
admissible in court or reasonably calculated to lead to admissible evidence

TONIA ROOT, individually and on behalf of GAGE ROOT, a minor, Petitioner, v.
BALFOUR BEATTY CONSTRUCTION LLC, a Delaware limited liability corporation; ZEP
CONSTRUCTION, INC.; C.W. ROBERTS CONTRACTING, INC. f/k/a COUGAR CONTRACTING
SPECIALITIES, INC., a wholly owned subsidiary of CONSTRUCTION PARTNER INC.;
DRMP, INC.; ROADSAFE TRAFFIC SYSTEMS, INC. f/k/a NES TRAFFIC SAFETY/ROADSAFE
TRAFFIC, L.P. f/k/a NES TRAFFIC SAFETY, L.P.; ALLIED ENGINEERING AND TESTING,
INC.; and CITY OF CAPE CORAL, Respondents. 2nd District. Case No. 2D13-3205.
Opinion filed February 5, 2014. Petition for Writ of Certiorari to the Circuit
Court for Lee County; Keith R. Kyle, Judge. Counsel: Steven L. Brannock and
Celene H. Humphries of Brannock & Humphries, Tampa, and Todd R. Falzone of
Kelley Uustal, PLC, Ft. Lauderdale, for Petitioner. Helen Ann Hauser, Peter
Restani, and Eric Farmelant of Restani, Dittmar & Hauser, P.A., Coral
Gables, for Respondents Balfour Beatty Construction, LLC and City of Cape Coral.
Scott A. Cole, David Salazar, and Kathryn L. Smith of Cole, Scott & Kissane,
P.A., Miami, for Respondent Zep Construction, Inc. No appearance for remaining
Respondents.

(SILBERMAN, Judge.) Tonia Root, individually and on behalf of Gage Root,
seeks certiorari review of the circuit court’s discovery order approving a
magistrate’s recommendations and requiring Root to produce copies of postings on
her Facebook account. Root argues that the order departs from the essential
requirements of the law because it allows discovery that is overbroad and
compels the production of personal information that is not relevant to her
claims. We agree and grant the petition.

The underlying action is a negligence action filed by Root against the City
of Cape Coral, a construction contractor, and subcontractors (Defendants) for
damages Root’s three-year-old son Gage suffered when he was struck by an
oncoming vehicle in front of a construction site. The accident occurred while
Gage was under the care of his seventeen-year-old aunt. Root alleged that
Defendants were negligent for failing to use reasonable care in keeping the
construction site safe for pedestrians. Root also raised derivative claims for
loss of parental consortium. Defendants raised affirmative defenses including
negligent entrustment of Gage by Root, the aunt’s failure to supervise, and the
driver’s negligence.

The discovery order at issue requires Root to produce copies of postings on
her Facebook account which include the following:

These categories are in addition to fifteen other categories of information
which Root concedes is discoverable.

Root argues that the order departs from the essential requirements of the law
because the above-listed categories are overbroad and the order requires the
production of personal information that is irrelevant and not likely to lead to
the discovery of admissible evidence. Defendants disagree and also argue that
Root has not established certiorari jurisdiction in this court because she has
not alleged irreparable harm arising from the discovery order.

We begin our analysis with Defendants’ jurisdictional argument. In order to
confer certiorari jurisdiction, a petitioner is required to establish
irreparable harm that is material and not remediable on postjudgment appeal.
Allstate Ins. Co v. Langston, 655 So. 2d 91, 94 (Fla. 1995); Parkway
Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA
1995). An order compelling the production of discovery that implicates privacy
rights demonstrates irreparable harm. Fla. First Fin. Group, Inc. v. De
Castro, 815 So. 2d 789, 791 (Fla. 4th DCA 2002) (citing Rasmussen v. S.
Fla. Blood Serv., Inc., 500 So. 2d 533, 536-37 (Fla. 1987)); see also
Holland v. Barfield, 35 So. 3d 953, 956 (Fla. 5th DCA 2010) (holding that
a discovery order requiring disclosure of private information on a computer hard
drive and cell phone SIM card demonstrated irreparable harm). Additionally, an
order that entitles a party to carte blanche discovery of irrelevant material
demonstrates the type of irreparable harm that may be remedied via petition for
writ of certiorari. See Langston, 655 So. 2d at 95. We conclude
that Root has appropriately invoked our certiorari jurisdiction.

On the merits, trial courts around the country have repeatedly determined
that social media evidence is discoverable. See Christopher B. Hopkins
& Tracy T. Segal, Discovery of Facebook Content in Fla. Cases, 31 No.
2 Trial Advoc. Q. 14, 14 (Spring 2012). And the Florida Rules of Civil Procedure
were amended in 2012 to provide guidelines regarding the production of
electronically stored information. See Fla. R. Civ. P. 1.350 committee
notes (2012 amend.). As one federal court has stated, discovery of information
on social networking sites simply requires applying “basic discovery principles
in a novel context.” E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D.
430, 434 (S.D. Ind. 2010).

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); Langston, 655
So. 2d at 94. We agree with Root that at present, Defendants have not met this
burden as to the requested discovery.

Root’s complaint contains claims on behalf of Gage for negligence as to each
defendant and Root’s derivative claims for loss of parental consortium.
Defendants responded with several affirmative defenses including negligent
entrustment of Gage by Root, the aunt’s failure to supervise, and the driver’s
negligence. As to Gage’s claims for negligence, none of the objected-to
discovery pertains to the accident itself. Similarly, none of the objected-to
discovery pertains to Defendants’ affirmative defenses. Instead, the discovery
relates to Root’s past and present personal relationships with all her children,
other family members, and significant others; Root’s past and present mental
health, stress complaints, and use of alcohol or other substances; and lawsuits
of any nature filed by Root or others after the accident.

The requested discovery also appears at this time to be irrelevant to Root’s
claims for loss of consortium. Although Root’s deposition has been taken,
Defendants do not point to anything claimed by her in support of their
contention that the requested information is relevant and discoverable.
Generally, any such discovery should have been limited to that related to the
impact of Gage’s injury upon Root. See United States v. Dempsey,
635 So. 2d 961, 965 (Fla. 1994) (“[W]e define loss of ‘consortium’ to include
the loss of companionship, society, love, affection, and solace of the injured
child, as well as ordinary day-to-day services that the child would have
rendered.”).

Moreover, the scope of the discovery compelled in categories (i) and (o)(i,
ii, iii, v) regarding Root’s relationships with her entire family and
significant others, her mental health history, her substance use history, and
her litigation history appears to be the type of carte blanche discovery the
supreme court sought to guard against in Langston. See Russell
v. Stardust Cruisers, Inc., 690 So. 2d 743, 745 (Fla. 5th DCA 1997)
(observing that while an individual’s health, life expectancy, and habits are at
issue and broad discovery is allowed, a court must still determine which records
would be relevant and the court should take protective measures, such as an in
camera inspection, to prevent disclosure of irrelevant matters); see also
Higgins v. Koch Dev. Corp., No. 3:11-cv-81-RLY-WGH, 2013 WL 3366278, at
*3 (S.D. Ind. July 5, 2013) (holding that the defendant was entitled to
discovery of the plaintiffs’ Facebook pages limited to the specific material
that is relevant to the plaintiffs’ claims).

Significantly, one defendant’s argument to the magistrate who heard the
discovery issues supports Root’s contention that the requested discovery
constitutes a fishing expedition. The defendant’s attorney stated, “These are
all things that we would like to look under the hood, so to speak, and figure
out whether that’s even a theory worth exploring.” Even the magistrate
acknowledged that relevancy might be a problem, noting that “95 percent, or 99
percent of this may not be relevant.” The magistrate also expressed some
misgivings at the possibility that large amounts of material might have to be
reviewed in camera.

In summary, based on the current posture of the case we conclude that the
portion of the order permitting the discovery of categories (i) and (o)(i, ii,
iii, v) must be quashed. Should further developments in the litigation suggest
that the requested information may be discoverable, the trial court may have to
review the material in camera and fashion appropriate limits and protections
regarding the discovery. See Alterra Healthcare Corp. v. Estate of
Shelley, 827 So. 2d 936, 945-46 (Fla. 2002); Russell, 690 So. 2d at
745; see also Michael B. Pullano & Matthew G. Laver, Discovery
Rulings Increasingly Unfriendly to Facebook Users’ Privacy Rights, 82
U.S.L.W. 867, 892-95 (Dec. 17, 2013) (discussing various approaches courts have
taken to ensure that Facebook material requested in discovery is not overbroad).
Accordingly, we grant Root’s petition for writ of certiorari and quash the
discovery order as it pertains to categories (i) and (o)(i, ii, iii, v).

Petition granted; order quashed in part. (NORTHCUTT and CASANUEVA, JJ.,
Concur.)