Nucci v. Target Corp. – Facebook Posts are Discoverable in Personal Injury Cases
Florida’s Fourth District Court of Appeals recently handed down its decision in Nucci v. Target Corp., a personal injury case wherein the discovery of the plaintiff’s Facebook posts was disputed. In Nucci, the plaintiff filed a lawsuit against Target claiming that she suffered permanent injuries due to a slip and fall accident. During the course of discovery, Target requested copies or screenshots of all photographs that the plaintiff posted on Facebook for a period of two years before the accident through the present day. The plaintiff objected to this discovery request, arguing that it was overbroad and burdensome and that it violated the Right of Privacy contained in Art. I, §23 of the Florida Constitution. When the trial court overruled the plaintiff’s objection and ordered her to turn over the Facebook discovery to the Defendant, she appealed.
In upholding the trial court’s order compelling the plaintiff to turn over the Facebook photographs, the Fourth DCA relied on three rationales. First, it held that the plaintiff lacked sufficient grounds to be entitled to certiorari review as overbreadth of discovery alone does not constitute a basis for certiorari. Specifically, the Court held that the plaintiff did not show that there has been a “violation of the clearly established principle of law resulting in a miscarriage of justice” which would have entitled her to such review. Second, the Fourth DCA noted that under Fla. R. Civ. P. 1.280 the parties are entitled to a broad scope of discovery and that pictures that individuals choose to put on Facebook and share with family and friends are highly relevant to a fact-finder in a personal injury case. As the jury is charged with the task of examining a plaintiff’s life before and after an accident and awarding damages, the Court noted, “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 medial before the occurrence of an accident causing injury,” and went to call the photographs “powerfully relevant.” Finally, in examining the plaintiff’s claims that these requests violated the Florida Constitution’s Right to Privacy, the Court noted that the privacy right must be balanced against the need for discovery in a personal injury case. Per the Fourth DCA, when a person chooses to post a picture on Facebook and share it with family and friends there is no real privacy expectation. Even if there is a minimal privacy right, the Court held, it is outweighed by the defendant’s legitimate interest in conducting before-and-after discovery.
Based on the above, it is highly advisable that if you suffer a personal injury or are the victim of medical malpractice, that you stop posting on Facebook. Social media has become a sort of free surveillance for insurance companies and big corporations such as Target who are being sued for personal injury. The courts have now made clear that social media posts can be discovered and used against you. Make no mistake – anything you post on Facebook can and will be used against you in a court of law.
Also of note from the Nucci opinion was that Defendant, in its initial discovery, requested all photographs taken by the Plaintiff with her cell phone camera for two years before the accident through the present day. The plaintiff did not choose to appeal the trial court’s ruling that these materials were discoverable. Keep in mind that if you have a personal injury claim not only will your Facebook posts be discovered, by your cellular phone pictures will too.