Are Facebook Photos More Discoverable In Litigation Than Other Social Media Content? (Forbes Cross-Post)

Social media posts often play an important part in litigation. Posts can provide more insight into the truth than a litigant’s “official” story in court. A 2009 case stands out: a woman was accused of illegally racing on a freeway and causing the other driver’s death. She claimed that she wasn’t racing but merely sped up to get out of the driver’s way. However, just the day before, she posted to MySpace: “If you find me on the freeway and you can keep up I have a really bad habit of racing random people.” As I blogged then, it’s becoming harder “to maintain multiple persona–in this case, the in-court persona of being a safe and courteous driver while simultaneously maintaining an alternative persona as a ‘secret’ street racer.”

You may be surprised that virtually everything we post to social media may be discoverable in litigation. Information “relevant” to the litigation generally should be available to litigation opponents. In personal injury cases, when plaintiffs allege they experienced “pain and suffering” or “emotional distress,” every comment and photo on Facebook might disprove these alleged harms, making them potentially relevant. And as I previously discussed, social media sites are making it easier to download a full record of users’ content.

Nevertheless, litigants can’t simply demand a complete download of their opponent’s Facebook posts. Their discovery requests must be calculated to lead to relevant evidence, so “fishing expeditions”–where relevant evidence might be incidentally caught in an overbroad discovery request driftnet–are not permitted. The privacy rights of the litigant, and third parties who communicate with the litigant, also need to be considered.

Courts have been struggling to define the line between permissible discovery requests for relevant social media content and impermissible “just give me everything” requests. Initially, courts granted more access than less. However, as judges understand social media better, they are often requiring litigants to make more nuanced requests for social media content.

A recent case on discovery of social media caught my attention. The plaintiff, Maria Nucci, claims she suffered personal injuries and emotional distress from a slip-and-fall at Target. Because Nucci’s lawsuit raised issues about her physical and emotional condition, Target sought to access her photos on Facebook. Her Facebook account was set to “private,” but suspicions were heightened when the number of photos in Nucci’s Facebook account shrunk immediately after her deposition (and post-accident surveillance videos showed her carrying around heavy items). The trial court ordered Nucci to produce Facebook “photographs depicting Nucci from the two years before the date of the incident to the present.” Nucci unsuccessfully appealed.

The appellate court treats photographs as an especially important class of materials to litigation:

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.

This implies a type of photo “exceptionalism” in discovery (which is consistent with other photo-exceptionalist legal doctrines like copyright and obscenity). Because photos always have the potential to “be worth a thousand words,” the court’s ruling suggests that photos typically should be more freely discoverable in future personal injuries lawsuits than other types of social media content.

The rapid rise of photo-centric services like Instagram, Pinterest and Snapchat show how important photos have become to our daily social interactions. The growing importance of photos might be a good reason to give greater privacy protections to photos, as a way of trying to preserve more intellectual freedom. Instead, as this ruling illustrates, the litigation trend is in the opposite direction.

Case citation: Nucci v. Target Corp., 2015 WL 71726 (Fla. Dist. Ct. App. Jan. 7, 2015).