Monday, January 26, 2015

Facebook Photos Fair Game in Litigation


Employees contemplating bringing claims involving damages for pain and suffering and emotional distress, and employers defending against such claims, need to be aware that more and more courts are ruling that an individual’s social media photos are fair game in litigation. One very recent example is Nucci v. Target Corporation, District Court of Appeal of Florida, (January 7, 2015).  

While shopping at a Target store in Florida in 2010, Maria Nucci slipped and fell on a floor that was wet with a slippery liquid.  She sued Target, alleging that due to Target’s negligence, she had medical and hospital expenses and suffered emotional distress, lost earnings, and loss of her ability to enjoy her life. 

Target’s lawyer scheduled Nucci’s deposition. In anticipation, the Target lawyer viewed Nucci’s Facebook profile and saw that it contained 1,285 photographs.  The photos were not available for anyone to see, because Nucci had set her Facebook setting so that only those who became her  “Friends” could view them. Therefore, at the deposition, the Target lawyer asked Nucci to produce the photographs.  Nucci’s lawyer objected.

Checking Nucci’s Facebook page two days later, Target’s lawyer saw that it listed only 1,249 photographs. In other words, after the deposition Nucci had deleted 36 of the photos.  Target warned Nucci in writing not to destroy any further information posted on her social media websites. Target also hired an investigator to follow Nucci.  The investigator took a surveillance video in which Nucci appeared to be not as disabled as she alleged in her court complaint - she could be seen walking with two purses on her shoulders or carrying two jugs of water.

In court on Target’s motion to compel Nucci to produce the photos, Target argued that it was entitled to view them because Nucci’s lawsuit put her physical and mental condition at issue. This same rationale is used by employers defending against employment discrimination suits, for example.

Nucci responded that since its creation, her Facebook page had been on a privacy setting that prevented the general public from having access to her account. Therefore, she claimed, she had a reasonable expectation of privacy regarding her Facebook information and that Target’s access would invade that privacy right. 

Target showed the court photographs from the surveillance video, suggesting that Nucci’s claim of serious personal injury was suspect. Target also contended that the content of social networking sites is not privileged or protected by the right to privacy. It noted that Facebook’s terms and conditions specifically explain that, regardless of a user’s intentions, the material contained in a post could be disseminated by Facebook at its discretion or under court order.

The Court stated that 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. It noted that from testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff’s life was like prior to an accident, observing:

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.

The Court decided that the relevance of the photographs overwhelmed Nucci’s minimal privacy interest in them. It concluded that Facebook photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships, observing that Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others.  The Court concluded that this sharing is the very nature and purpose of these social networking sites, without which they would cease to exist.

Facebook and other social media sites are fertile territory, not only for opposing parties in litigation, but for prospective employers trying to get information before tendering an employment offer, college admissions officers, security clearance investigators, and others.  Users of social media need to be aware that when they share their “fun” photos with their friends, they may be revealing more than they intended. 

     - This blog entry was prepared by Elizabeth L. Newman.  You may reach her at enewman@kcnlaw.com.

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