On January 7, 2015, the Fourth District Court of Appeals issued a decision finding that the relevance of a personal injury plaintiff’s photos posted on Facebook outweighed the plaintiff’s privacy interest in the photos. See Nucci v. Target Corp., et al, No. 4D14-138 (Fla. 4th DCA Jan. 7, 2015). The plaintiff in Nucci brought a personal injury action against Target and other defendants arising from a slip and fall accident which occurred in one of Target’s stores. Although the trial court initially denied Target’s motion to compel production of the Facebook photos, it later granted Target’s motion to compel more narrow discovery requests. Specifically, the trial court ordered the plaintiff to identify all social and professional networking sites she was affiliated with and for each networking site, the trial court ordered plaintiff to provide copies or screenshots of all photos associated with the account for two years prior to the date of the accident through to the present. Opinion at *2-3.
On appeal, the plaintiff in Nucci sought to quash the trial court’s order compelling production of the photos, arguing that the lower court’s order constitutes an invasion of privacy. The plaintiff also argued that her activation of privacy settings on her Facebook account invoked the protections afforded under the Federal Stored Communications Act, 18 U.S.C. §§ 2701-2712, and were therefore not discoverable. In its response, Target argued that the materials which the trial court ordered plaintiff to produce were relevant to the plaintiff’s injury claim as it allowed a comparison of plaintiff’s current physical condition to her condition before the accident. Target also argued that the court did not grant it “unfettered access” to the Facebook accounts because it did not compel production of plaintiff’s passwords. Id. at *4.
The Fourth District, in denying plaintiff’s petition to quash production of the photos, noted that “[t]his case stands at the intersection of a litigant’s privacy interests in social media postings and the broad discovery allowed in Florida in a civil case.” Id.at *5. The court noted that four factors supported denial of plaintiff’s request to quash the production order. First, plaintiff was before the court seeking certiorari relief, which is available “in only a narrow class of cases” and comes with “stringent requirements.” Id. Next, the court noted that discovery in civil cases is broad and discovery rulings are reviewed under an abuse of discretion standard. Third, the court found that plaintiff’s photos on Facebook were “highly relevant.” Id. Finally, the court reasoned that the plaintiff had a “limited privacy interest, if any, in pictures posted on her social networking sites.” Id.
Several factors weighed against the plaintiff’s appeal in Nucci. First, the plaintiff was before the Fourth District on a petition for certiorari seeking to quash a discovery order. The appellate court noted that because of the wide discretion granted to trial judges, “it is difficult to establish certiorari jurisdiction of discovery orders.” Opinion at *7. Also, the court found the relevance of the photos “enhanced” by the video surveillance of the plaintiff which “suggest that her injury claims are suspect.” Id.
Regarding plaintiff’s expectation of privacy in her photos, the Nucci court agreed with those cases that generally hold photographs posted to social networking sites are neither privileged nor protected by any right of privacy. Id. at *9, citing Davenport v. State Farm, 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). Regarding plaintiff’s argument that the pictures were protected under the Federal Stored Communications Act, the court in Nucci cited other decisions finding that the SCA prevents providers of communication services, not individual users, from divulging private communications. Opinion at *10 – 11 (citations omitted).
Nucci should not be construed as a decision that grants a party “carte blanche” access to a litigant’s Facebook page. The court said as much when it distinguished the facts in Nucci from those in Root v. Balfour Beatty Construction, LLC, 132 So.3d 867 (Fla. 2d DCA 2014). It is also important to remember that the court in Nuccinoted that the plaintiff raised general objections to the discovery requests, but made “no objections specifically directed at any particular photograph.” Opinion at *3. The court also noted that while the plaintiff in Nucci objected to all disclosure of the Facebook photos, “she did not attempt to limit disclosure of the photographs by establishing discrete guidelines.” Id. at *4 (further citations omitted).
One final issue is worth considering regarding the opinion in Nucci. In discussing whether a litigant has an expectation of privacy in pictures posted to Facebook, the court noted that “Facebook itself does not guarantee privacy.” Opinion at *9. This point, however, raises the question of whether any third party can or will guarantee a party’s privacy and whether the existence or not of such a guarantee is relevant to a parties’ expectation of privacy.