Using social media to connect with friends, relatives and co-workers is considered the norm. Without even thinking, people pick up their phone, open their Facebook account and “check in” at a restaurant or take a picture and post if they are out and about. Is this right or is this wrong? Most people assume the information they are sharing is only being shared with their “friends”. Even with the highest privacy settings, those posts and pictures can be accessed by others that are not your friends. If you are in litigation, your information can be accessed and reviewed by “the other side.” Consequently, what you thought was an innocent post could have the impact of damaging your case. For example, if you were in a car accident and claim you are in pain all the time, and then post a picture of you laying by the pool, the defense can take that picture and twist it to look like you are not in pain. Consequently, they have painted you to be a liar.
In Nucci v. Target Corp., which was a slip-and-fall claim being reviewed by Florida’s 4th District Court of Appeal, plaintiff sued Target for negligence, asserting her slip and fall resulted in her suffering bodily injury, pain, emotional pain and suffering, in addition to other damages.
Two days before the plaintiff’s deposition, the defense noted plaintiff’s Facebook profile page contained 1,285 photographs. However, two days after the deposition, her profile page contained only 1,249 photographs. She had deleted about 35 photos. The case does not make it clear why she deleted the photographs. Regardless, defense lawyers filed a motion and asserted that if her mental and physical well-being were the central issue in the case, they had the right to view those photographs as well as having the court direct her from deleting anything else. In support of the motion, defense produced surveillance footage taken after the incident of plaintiff carrying two jugs of water and two purses on her shoulders. This was evidence plaintiff was exaggerating the extent of her injuries. In her defense, plaintiff argued social media had privacy settings for individuals which prevented the public from having access to that account, and she had a reasonable expectation of privacy for what she posted in that domain.
Trial court granted the motion, and plaintiff appealed, arguing an invasion of privacy.
The appeals court affirmed the lower court’s ruling. Judge Robert Gross, with Judges Matthew Stevenson and Jonathan Gerber concurring, wrote: “In a personal injury case where the plaintiff is seeking intangible damages, the fact-finder is required to examine the quality of the plaintiff’s life before and after the accident to determine the extent of the loss. From testimony alone, 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 existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit.”
To read the entire opinion, click here: http://www.4dca.org/opinions/Jan%202015/01-07-15/4D14-138.op.pdf