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Maria F. Leon Nucci v. Target Corp., et al., Case No. 4D14-138 (4th DCA)

In Nucci, the plaintiff petitioned the Fourth District for certiorari relief to quash a discovery order compelling production of photographs from her Facebook account. The suit arose from a slip and fall at a Target store, which caused bodily injury among other things. Prior to the plaintiff's deposition, the defendant's attorneys found 1,285 photographs on the plaintiff's Facebook account. Following the deposition, the defendant's attorneys found 1,249 photographs on the Facebook account. Target's attorneys requested that the plaintiff not "destroy further information posted on her social media websites," and requested production of photographs from her social media sites. The trial court eventually entered an order compelling production of photographs from the plaintiff's social media sites going back two years. The Fourth District noted that the production was to be limited to photographs depicting the plaintiff.

The Fourth District noted that the case stood "at the intersection of a litigant's privacy interests in social media postings and the broad discovery allowed in Florida in a civil case." The court stated that four factors lead to the conclusion that the petition should be denied. First, the court found that this case did not meet the stringent requirements for certiorari relief. Second, the court noted that the scope of discovery in civil cases is broad and discovery orders are subject to an abuse of discretion standard. Third, the information sought -- photographs posted on the plaintiff's social media -- was, according to the Fourth District, "highly relevant." Fourth, the court found that the plaintiff had only a limited privacy interest, if any, in pictures posted on her social networking sites.

The Fourth District first addressed the legal standard for certiorari. A petitioner must establish three elements: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post judgment appeal. The last two elements, known as irreparable harm, are jurisdictional. The court further noted that overbreadth and irrelevance alone do not suffice for certiorari jurisdiction. However, certiorari may be granted where a discovery order requires disclosure of private information not relevant to any issue in the litigation and that is not calculated to lead to admissible evidence.

The Fourth District next commented on the broad scope of discovery under Florida law. The outer limit of discovery is that litigants are not entitled to carte blanche discovery of irrelevant materials. The court noted that in personal injury cases "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." The court stated that 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." The court further noted that the photographs in Nucci were particularly important given that post-accident surveillance videos suggested that the plaintiff's injuries were suspect. The court therefore found that the pictures were relevant, and the two year scope rendered the requests not overly broad.

The Fourth District lastly addressed the plaintiff's right of privacy. The Florida Constitution expressly protects an individual's right to privacy. Once a legitimate expectation of privacy is shown, the burden shifts to the party seeking disclosure to show that the invasion is warranted by a compelling interest and that the least intrusive means are used. In the civil discovery context, the courts must employ a balancing test, weighing the need for discovery against the privacy interests. The Fourth District "agree[d] with those cases concluding that, generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established." The court found that the very nature and purpose of social networking sites is to share personal information with others. The court rejected the argument that privacy settings on social media create an expectation of privacy, finding that such information may be copied and disseminated by those allowed to view an individual's site.

The Fourth District additionally distinguished Root v. Balfour Beatty Construction, LLC, finding that the Balfour discovery order required production of a "broader swath of Facebook materials without any temporal limitation . . . that relate to the mother's relationships with all of her children, not just the three year old" whose injuries were at issue, and "with other family members, boyfriends, husbands, and/or significant others." The Fourth District found that the discovery order at issue in this case was narrower in scope. Accordingly, the Fourth District denied the petition for certiorari review, finding the discovery order calculated to lead to the discovery of admissible evidence.


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