Personal Injury Plaintiff Required to Produce Photographs from her “Private” Facebook Page.

In Nucci v. Target Corp., 2015 Fla. App. LEXIS 153, plaintiff claimed that she slipped and fell on a foreign substance on the floor of a Target store. In the complaint the plaintiff alleged the she suffered bodily injury, experienced pain from the injury, incurred medical, hospital, and nursing expenses, suffered physical handicap, suffered emotional pain and suffering, lost earnings, lost the ability to earn money, lost or suffered a diminution of ability to enjoy her life, suffered aggravation of preexisting injuries, suffered permanent or continuing injuries, and will continue to suffer the losses and impairment in the future. Defendant moved to compel inspection of plaintiff’s Facebook profile. Plaintiff’s response to the motion explained that her Facebook page had been on a privacy setting that prevented the general public from having access to her account. Plaintiff claimed the request was overly broad and that she had a reasonable expectation of privacy regarding her Facebook information and that defendant’s access would invade that privacy right.

At the trial courts hearing on the motion to compel, the defendant showed the court surveillance video in which the plaintiff could be seen walking with two purses on her shoulders and carrying two jugs of water.   Defendant argued that because the plaintiff had put her physical condition at question, the relevancy of the Facebook photographs outweighed the plaintiff’s right to privacy. The trial court agreed and granted the defendants motion. The plaintiff sought certiorari relief to quash the trial court’s order compelling discovery of photos from her Facebook account.

The Fourth District Court of Appeal of Florida held that the photographs sought were reasonably calculated to lead to the discovery of admissible evidence and Nucci’s privacy interest in them was minimal, if any. Because the discovery order did not amount to a departure from the essential requirements of law, the Court denied plaintiff petition.

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. 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 the plaintiff 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 noted that the production order is not overly broad under the circumstances as it is limited to the two years prior to the incident up to the present, the photographs sought are easily accessed, and exist in electronic form.