Most of us these days use social media—whether it is Facebook, Myspace, Twitter, Instagram or the like—to share parts of our lives with friends and family members. We post photographs of our day, our vacations, even our meals. We share updates on where we are and what we are doing, our thoughts on current events and politics. Some of us “overshare” and in those situations, a mere glimpse into someone’s social media account can reveal nearly every facet of his life. Generally speaking, sharing the details of your life on social media causes no harm. However, that can change when you are involved in a claim for personal injury. In that case, sharing your life on social media can be detrimental to your case.
The Defense’s Ability to Discover Your Social Media Account
During our initial meeting with clients, we stress the importance of refraining from posting on their social media account during the pendency of their case. We do this because more and more Florida courts are allowing defense attorneys access into a plaintiff’s social media account. Such access can be devastating to a plaintiff’s claim if there are inconsistencies between a plaintiff’s deposition testimony and that which is contained through photographs and other postings on his/her social media profile.
Current Case Law
Recently, the Fourth District Court of Appeal denied a plaintiff’s petition for certiorari relief to quash a trial judge’s order permitting the defense counsel from obtaining photographs from a plaintiff’s Facebook account. See Nucci v. Target Corp., American Cleaning Contracting, and First Choice Building Maintenance, Inc., (No. 4D14-138 Jan. 7, 2015 4th DCA). In that case, the plaintiff, Maria Nucci, brought a claim for personal injuries against Target after she slipped and fell on a foreign substance that was on the floor. As is typical in a claim for personal injuries, Nucci claimed, in part, that she suffered bodily injury, experienced pain from the injury, suffered emotional pain and suffering, and lost or suffered a diminution of ability to enjoy her life.
Before Nucci underwent her deposition, Target’s attorney investigated Nucci’s Facebook profile and saw that it contained around 1,200 photographs. During the deposition, Nucci’s attorney objected to producing the photographs and Target subsequently moved for the trial court to order Nucci to produce the photographs and allow Target to inspect her Facebook profile.
The Arguments for and against Disclosure
Nucci argued that her Facebook page contained “privacy” settings that prevented the general public from having access to her account and that she therefore had a reasonable expectation of privacy regarding her Facebook information and that Target’s access would invade that right to privacy.
Target, conversely, argued that it was entitled to view the profile and access the photographs because Nucci’s lawsuit put her physical and mental condition at issue. Target focused on the fact that surveillance videos showed Nucci carrying heavy bags, jugs of water, and doing other types of physical activities, “suggesting that her claim of serious personal injury is suspect.” Target argued that the photographs and other material found on the plaintiff’s Facebook page were relevant to the plaintiff’s claim for personal injury because it allowed a comparison of the plaintiff’s current physical condition and limitations to her physical condition and quality of life before the date of the fall. Target further contended that content of social media sites are not privileged or protected by any privacy rights because Facebook’s terms and conditions explain that the material that is placed on the site can be disseminated by Facebook at its discretion.
The Court’s Ruling
After hearing arguments from both parties, the trial court agreed with Target and compelled the production of the photographs from the plaintiff’s Facebook account. Specifically, the trial court compelled Nucci to identify all social media networking websites that she was currently registered with as well copies or screenshots of all photographs associated with that account during the two (2) years prior to the date of loss as well as all photographs associated with Plaintiff’s Facebook account from the date of loss to present. Target also requested and was given access to similar information located on the Plaintiff’s cell phone.
Although the plaintiff asked the appellate court to intervene and quash the trial court’s order, the Fourth District Court of Appeal denied the plaintiff’s petition.
The Appellate Court’s Rationale
The Appellate court reasoned that in a personal injury case where a plaintiff is seeking intangible (pain and suffering) damages, the factfinder (usually a jury) is required to examine the quality of the plaintiff’s life before and after the accident to determine the extent of loss. The court recognized that “a picture is worth 1,000 words” and that it can be difficult for the jury to grasp what the plaintiff’s life was like prior to the accident by listening to the plaintiff’s testimony alone. The court further found that the plaintiff’s Facebook photographs would be equivalent to a “day in the life” slide show produced by the plaintiff “before the existence of any motivate to manipulate.” Lastly, because the defendant had surveillance video of Nucci carrying heavy items, the court was even more inclined to allow the discovery of the Facebook photographs because the surveillance tapes suggested that Nucci’s claim was “suspect” and that she may not have been an accurate reporter of her pre-accident life or the quality of her life since then.
What Current Case Law Means to your Personal Injury Case
The Fourth District Court of Appeal’s recent decision in Nucci illustrates the importance of being aware of what is on your Facebook profile and how it may affect your personal injury case. Oftentimes photographs on your account depicting your activities before the accident can be valuable in illustrating a “day in life” slideshow. The harm, however, comes when there are photographs showing your ability to participate in certain activities that you testify that you can no longer do based on your injuries. Moreover, if you claim the incident has detrimentally affected your quality of life, then photographs of your tropical vacation or frequent nights out will undoubtedly call unnecessary scrutiny to those claims. In short, do not post photographs or other information on your social media account under the false assumption that you have an expectation of privacy in those materials. Thinking before you post and knowing that the trend of courts in Florida is to allow the defense access to your online social media accounts will ensure that you are not inadvertently damaging your own case. For more information, call Dolman Law Group 727-451-6900.
Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765