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Discovery in the Age of Facebook

By:  Stephanie Preston, Esquire

Constitutional Right of Privacy

The Florida Constitution affords Floridians the right of privacy where there is a reasonable expectation of privacy. However, the decision to take photographs and to keep a record that may be shown to people in the future weighs against a reasonable expectation of privacy. A.H. v. State, 949 So. 2d 234, 237 (Fla. 1st DCA 2007).

Social Networking – Is Your Facebook Page Really “Private?”

Facebook is a social networking site where people share information about their personal lives by posting photographs and videos and by sharing information about what they are doing or thinking. One’s Facebook page will generally list numerous, if not hundreds of “Facebook Friends” (i.e., people to whom one has voluntarily and intentionally given access to all of one’s posted photographs, videos, comments, and other postings). A Facebook user determines who may view his profile. Removing one’s profile from public view does not mean one’s Facebook page is “private” and only available to the user. Instead, it means the page is open only to one’s “Facebook Friends.” Thus, even if marked private, a Facebook page may be open to virtually hundreds of people.

Facebook Postings May Be Fair Game In Litigation

Given the extensive and widespread use of social networking, litigants often seek to discover information about the opposing party by reviewing his or her Facebook page. Several courts have specifically addressed the issue of Facebook discovery and have held there is no expectation of privacy with respect to Facebook postings. For example, in Davenport v. State Farm Mutual Automobile Insurance Company, 2012 WL 555759 (M.D. Fla. Feb. 21, 2012), the defendant sought to compel a personal injury plaintiff to produce all photos of the plaintiff posted to any social networking sites, including Facebook, since the date of the accident (including photos posted by others in which the plaintiff had been “tagged” or otherwise identified). The plaintiff objected and claimed the defendant was on a “fishing expedition” seeking everything in her personal life. The district court disagreed, because the plaintiff’s physical condition and “quality of life” were at issue in the case, and ordered the plaintiff to produce any photographs depicting herself, taken since the date of the subject accident, and posted to a social networking site, regardless of who posted them.

In Romano v. Steelcase, 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), the plaintiff suffered injuries when she fell from a defective chair manufactured by the defendant. The defendant believed the plaintiff’s social network accounts contained photographs which were inconsistent with these claims and sought to discover information posted on the plaintiff’s MySpace and Facebook pages. The New York court held this information was discoverable, because the plaintiff’s public profile page showed her smiling happily outside of her home, which contradicted her claim she was “largely confined to her house and bed.” The court believed there was a reasonable likelihood the private portions of the site might contain further evidence with regard to her activities and enjoyment of life which would be admissible and compelled the plaintiff to provide the defendants with an executed consent and authorization as required by Facebook to release the plaintiff’s page and account.

Courts in other jurisdictions have also held there is no reasonable expectation of privacy with respect to the discovery of information on social networking sites. In one case, Largent v. Reed, 2011 WL 5632688 (Pa. Com. Pl. Nov. 8, 2011), a personal injury plaintiff had posted photos showing her enjoying life with family and friends and including a status update about her visit to the gym. In another case, B.M. v. D.M., 927 N.Y.S.2d 814 (N.Y. Sup. April 7, 2011), the court held statements made by a wife on her blog pages regarding her belly dancing activities were relevant to the effect of an accident on her life. And, in Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011), the court held photographs and postings reflecting the plaintiff’s continued operation of motorcycles, his riding of a mule, his involvement in hunting activities, and his travels were discoverable. See also Beswick v. Northwest Medical Center, Inc., No. 07-020592 (17th Judicial Circuit, Broward County, Florida Nov. 3, 2011) (compelling plaintiffs in a medical negligence case to execute an authorization for the release of their Facebook and other social media records (e.g., Twitter, LinkedIn, MySpace, etc.) for a five year time period).

Nevertheless, A Smile In A Profile Picture Is Not Enough

Even though, as indicated above, Facebook postings have been found relevant and discoverable in some cases, several courts have held the fact a plaintiff is merely smiling in a photograph or doing something innocuous such as pushing a grocery cart or holding a pet will not warrant a full fledged search of his or her private Facebook account. See Davids v Novartis Pharmaceuticals Corporation, Case 2:06-CV-00431-ADS-WDW (E.D.N.Y. Feb. 24, 2012); Tompkins v. Detroit Metro Airport, Case No. 10-10413 (E.D. Mich. Jan. 18, 2012); McCann v. Harleysville Ins. Co., 910 N.Y.S.2d 614, 615 (N.Y. App. 4th Dept. 2010).

Morale of the Story – Exercise Discretion When Posting On Facebook

In the end, it is important to realize a person’s Facebook account may be deemed material and necessary to a claim or defense in litigation. Posted photographs or status updates showing a personal injury plaintiff engaging in sports or other physical activities may suggest the plaintiff has recently engaged in activities relevant to his claim he suffered permanent injuries or the loss of the capacity to enjoy life. It is certainly arguable a person has no reasonable expectation of privacy in any photographs, postings, and other information on his Facebook page, where he has agreed to share that information with hundreds of other people (i.e., “friends”) on a social networking website.

On the other hand, at least some courts have been receptive to the idea Facebook discovery will only be allowed when there has been some threshold showing, such as by a review of the party’s public postings, that the private postings may contain evidence reasonably calculated to lead to the discovery of admissible evidence (e.g., a profile photograph showing a personal injury plaintiff engaged in sports or some strenuous or dangerous activity).

Florida Litigation Attorney Stephanie Preston

About the Author, Stephanie Preston, Esquire. Stephanie is a partner with the Fisher Rushmer in Orlando, Florida. She concentrates her practice in employment law, appellate law and insurance coverage. She can be reached at

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