Social media evidence is generally not entitled to a presumption of privacy, nor is it subject to privilege protection against discovery. Nonetheless, plaintiffs frequently raise objections to demands for access to social media collection discovery requests. And when a defendant’s discovery request constitutes a broad-scale fishing expedition, plaintiffs often prevail in their objections. Overcoming objections to social media discovery requires practicing restraint and limiting requests to information that could reasonably be considered relevant to a case.
Many people freely share personal information on social media accounts regarding nearly every aspect of their lives including their behavior, health, lifestyle, associates, and substance abuse. Social media profiles represent a potential gold mine to defendants for potentially damaging content regarding a plaintiff’s claim regarding physical injury, emotional distress or fraud. It is a matter of due diligence for defendants in personal injury lawsuits to tap into the potentially rich data sources of social media profiles associated with opposing parties.
Photographs associated with social media posts represent a precious potential source for discovery. Like other elements of social media profiles, photographs are not privileged or entitled to a presumption of privacy, even for users who have established enhanced privacy settings on their accounts,
The examination below of a slip and fall case illustrates both proper and improper approaches to social media collection and discovery of photographic evidence.
In Nucci v. Target Corp., 162 So.3d 146 (Fla. 4th DCA 2015), the defendant filed a motion to access the plaintiff’s entire Facebook account after photographs started disappearing from the plaintiff’s Facebook profile. The court agreed with the plaintiff’s protests that the defendant’s claim was overly broad. In response, the defendant filed a motion demanding only access to photographs from the plaintiff’s Facebook profile dating back two years prior to the incident behind the lawsuit, up to the date of the motion for discovery.
In granting the defendant’s narrower discovery motion, the Fourth District determined that, because photographs and other social media profile information can be copied and shared by other users, “[t]he expectation that such information is private, in the traditional sense of the word, is not a reasonable one.”
The lesson from Nucci is that defense attorneys should exercise restraint regarding social media discovery, limiting requests to relevant and “reasonably calculated” information to overcome objections by plaintiffs regarding the discovery of social media data. SMI Aware works with litigants to ensure that e-discovery motions yield the information our clients need without overstepping legal boundaries.
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The growth of social media has changed virtually everything, impacting human interactions in ways we couldn’t have imagined. It offers a platform for networking, social interactions, and marketing. Nowadays, lawyers and investigation teams use it to collect defensible social media.
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