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Will I Have To Disclose Facebook Photos In A Lawsuit?

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Disclose Facebook Photo LawsuitPhotos sought in a personal injury lawsuit are relevant to damage issues.  Generally,  Facebook photos are neither privileged, nor protected by any right of privacy, regardless of any privacy settings used. Because a personal injury plaintiff has put their physical and mental condition at issue, Florida courts have routinely ordered Facebook photos and video to be disclosed.

In a recent South Florida slip and fall case, a defense lawyer viewed the plaintiff’s Facebook profile before a deposition, and saw it contained approximately 1,300 photos. The defense lawyer examined the Facebook profile a few day after the deposition and noticed it listed 36 less photographs than before. The defense lawyer immediately filed a “motion to compel” and wrote to the plaintiff asking that she not destroy any more photos on her Facebook account. The defense lawyer argued that he was entitled to view the Facebook profile because the plaintiff’s slip and fall lawsuit put her physical and mental condition at issue. The trial court agreed and found that the plaintiff’s Facebook photos were discoverable.

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Broad Scope of Discovery

In Florida, the scope of discovery is broad and includes any matter that is “reasonably calculated to lead to the discovery of admissible evidence.” Further, it is not grounds for objection that the information will be inadmissible at trial. Because of this broad scope of discovery in Florida civil cases, the trial court is given wide discretion in ruling on discovery issues.

In a personal injury lawsuit where a plaintiff is claiming pain and suffering and mental anguish damages, the jury is required to look at the quality of the plaintiff’s life before and after the accident to determine the extent of the loss. From witness testimony alone, it’s hard for the jury to understand what the plaintiff’s life was like before the accident. If a picture is worth a thousand words, there is no better showing of what a plaintiff’s life was like than those photos shared through Facebook before an accident. Such Facebook photos are like a slide show created by the plaintiff before they had any reason to distort the truth for financial gain.

Facebook Privacy Settings

Facebook is a free social media site where a person creates a profile which acts as a personal homepage and may include photos, personal information, including age, education, religious and political views, relationship status, and other fun and interesting things. Once a user joins Facebook, they have opened the door to connect with “friends.” Through Facebook a user can post, share, and tag photos, videos, updates on personal lives, political rants, successes and failures, inspirational quotes, essentially anything you could possibly think of. As a result, Facebook can provide a “glory hole” of information for defense counsel in a personal injury case.

Under Florida law, postings on a Facebook account, if relevant, generally is not shielded from discovery even if the user’s privacy settings are marked “private.” Facebook’s own user agreement does not even guarantee privacy. Simply by creating a Facebook account, a user acknowledges that personal information will be shared with others, which is the purpose of social media. Even if a person sets their Facebook account to “private”, thus allowing only “friends” to see postings, there still is no reasonable expectation that the information will be kept private. For example, if a user posts a picture, anyone of that user’s “friends” could share or tag the picture for potentially the world to see.  Once a user posts a photo they lose control of the photo forever. It is common knowledge among Facebook users that the bigger circle of “friends” the more likely the posts are to be viewed.

In personal injury lawsuits the relevancy of photos generally outweighs the little privacy interest.  Under the Florida Constitution, “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” This fundamental privacy right is broader than the privacy rights under the U.S. Constitution and ensure that people are free to “determine for themselves when, how, and to what extent information about them is communicated to others.” This becomes a little more complicated when a person voluntarily subjects themselves to litigation as in the case of a personal injury plaintiff. In this scenario, there must be some legitimate expectation of privacy before a right to privacy attaches.  Again, because the information a plaintiff “posts” on Facebook may be copied and shared by others there is generally no reasonable expectation of privacy.

Don’t Delete Your Facebook Photos

Plaintiffs in Florida personal injury lawsuits may be tempted to delete their Facebook photos while in litigation. This is a mistake. This is especially true if the opposing attorney has made a written request that you not destroy information posted on social media sites, which is becoming common practice.  This is often referred to as a “spoliation letter” or “preservation of evidence” letter. Once a party receives spoliation letter, that party has a duty to preserve the evidence.

In Florida, the trial court could give a jury instruction allowing the jury to draw an “adverse inference” from a plaintiff deleting or otherwise destroying Facebook photos that were not preserved despite opposing counsel’s request, if found to have hampered the opposing party’s ability to prove its claims or defenses. While trial courts have the authority to impose sanctions for discovery violations, it does not prevent the jury’s consideration relevant to the spoliation. An adverse inference instruction arising out of an alleged spoliation of evidence claim does not relieve a party of its burden of proof at trial.

The remedies for spoliation or destruction of evidence includes allowing the party who has been harmed to present evidence about the circumstances surrounding the spoliation, as well as instructing the jury on the inferences that may be drawn from the spoliation. In other words, the plaintiff destroyed the photographs because what they were bad for their case. Prior to the trial court exercising any level of authority due to spoliation of evidence, the court must answer three threshold questions: (1) whether the photos existed at one time; (2) whether the spoliator had a duty to preserve the photos; and (3) whether the photos were critical to the opposing party being able to prove its claims or defenses. Unlike an adverse presumption instruction, where the trial court must find the spoliator was duty-bound to preserve the evidence, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party, and that party either loses or destroys the evidence.

Would You Want To See That In Court?

A good rule of thumb is don’t post anything on social media that you wouldn’t want to see in open court. Photos of you partying with your friends or competing in Cross-Fit competitions could be used against you in a personal injury lawsuit. It is best practice to stop using social media completely while your personal injury case is pending. Remember, just because your Facebook account is set to “private” does not mean it is not discoverable.  Cases have been won (and lost) in Florida based on the plaintiff’s Facebook posts. It is not worth losing your case over.

For more information about disclosure of Facebook photos in a lawsuit, and other discovery issues visit my website at www.longofirm.com.

Micah J. Longo
The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
mlongo@longofirm.com

When Can You Sue For Wrongful Termination In Florida?

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Wrongful Termination Florida SueEmployees who feel they have been subjected to a wrongful termination in Florida can sue under Title VII of the Civil Rights Act of 1964 (federal law) or under the Florida Civil Rights Act (state law).  Florida is an at-will employment state.  This means you can be terminated for any reason, so long as, it’s not an unlawful reason.  An example of an unlawful reason would be you are fired because of your race, national origin, age, sex, religions, or disability.  These are the protected classes under federal and state anti-discrimination laws.

An employee can sue for wrongful termination in Florida if the reason they are being terminated is because of their membership in a protected class.  For example, if a decision to terminate a woman was motivated by her being a woman (i.e. sex), and not some other legitimate, non-discriminatory reason, then she may sue for wrongful termination in Florida.  However, if she was fired only because of poor performance, then she likely cannot sue for wrongful termination in Florida.

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Filing:  Charge of Discrimination

If an employee believes they have been wrongfully terminated they must file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the termination.  I recommend employees who want to sue for wrongful termination co-file that charge of discrimination with the Florida Commission on Human Relations (“FCHR”).  This gives employees the opportunity to bring a wrongful termination case under the Florida Civil Rights Act (“FCRA”) which is a better law to sue under for wrongful termination for employees.

Avoiding Termination

The best way to avoid a wrongful termination is to report the behavior to the Human Resources (“HR”) department.  This should be done in writing and as soon as possible. By reporting the unlawful behavior to HR you are exercising your statutorily protected rights.  Then, if you are terminated shortly after reporting the behavior to HR, you have a prima facia case of “retaliation.”  In other words, it is unlawful to fire someone for reporting discrimination in the workplace.  This isn’t to say that you cannot still be fired for a legitimate reason, even if you made a report of discrimination.  For example, if the employer states the employee was fired for performance and not because he or she made a complaint to HR, then the burden of proof shifts back to the employee to prove that the reason offered by the employer is false.

Unlawful Retaliation

Retaliation cases are much easier to prove.  All that is required is a good faith belief that discrimination is taking place.  There are cases where the plaintiff loses the discrimination part of the case, but wins on retaliation. This is especially true when an employee is fired just after making a written complaint to HR or filing a charge of discrimination.

For example, suppose employee feels his boss is treating him badly and it’s because he is Black.  The employee files a written complaint with HR claiming that he boss is discriminating against him and the reason is because of the color of his skin.  Two (2) weeks later the employee is fired.  Provided the employee can prove that he wasn’t fired for some other legitimate, non-retaliatory reason, he has a winning retaliation case.

For More Information

If you believe that you have been wrongfully terminated because of your race, national origin, age, sex, religion, or disability, you can sue in Florida.  For more information visit our Davie employment law firm website at longofirm.com.

The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel:  (954) 862-3608
Fax: (954) 944-1916

Micah J. Longo
mlongo@longofirm.com

Could Clinton Still Be Indicted If Trump Is President?

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If Donald Trump becomes President, he could appoint an Attorney General that could indict Hillary Clinton.  She is not out of the woods yet.

Hillary Clinton is suspected of violating 18 U.S.C. §793.  Gathering, transmitting, or losing defense information.  The statute of limitations in connection with indictments for violating this section of the United States Code is 10 years after the violation has been committed.  So, if Trump wins and appoints an Attorney General with some “balls,” an indictment could be brought against Clinton.

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What is really concerning is the position of the FBI.  On one hand, FBI Director James Comey stated Tuesday, “no reasonable prosecutor” would bring a case against Clinton given the facts uncovered by the investigation, which found no “clear evidence” of criminal intent.

On the other hand, the FBI found that Clinton sent emails containing classified material — not retroactively, but at the time they were sent.  The FBI also found that Hillary Clinton did not turn over all of her work emails and some of the emails that were destroyed by her lawyers were classified.  While we may never know the full extent of the damage to national security, I think it is safe to say that her private email server put the country at risk.

Could the FBI director be sending us a hidden message? Hey guys, I think Hillary Clinton violated federal law, my team thinks she violated federal law, but it would all but clinch a victory for Donald Trump and my boss would rather piss on the Constitution and the Rule of Law than let that happen… so I’m here to say we won’t be indicting Hillary Clinton, but we found she did all these bad things.  Smash cut to Will Farrell’s character in Zoolander, “doesn’t anyone notice this??  I feel like I’m taking crazy pills?

I guess only time will tell if Hillary Clinton will be indicted if Donald Trump is President.

Can Employer Fire Me Without Giving A Reason In Florida?

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Reason.Fired.Florida.Florida employers can fire employees without giving a reason. Florida is an “at-will” employment state. This means an employee can be fired for any reason, so long as it’s not an “unlawful reason.” An example of an unlawful reason would be firing because of race, national origin, age, sex, religion, or disability.

Florida Laws On Firing Employees

There is no law in Florida that requires an employer to provide a reason for why they’re firing an employee. Only in an unlawful termination lawsuit is an employer required to provide a “legitimate, non-discriminatory” reason for the termination.  If an employee proves the basic elements of a wrongful termination claim, the burden then shifts to the employer to offer a “legitimate, non-discriminatory” reason for their actions. For example, an employer could cite poor performance or violation of company policy as the reason for the employee’s termination.

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After an employer offers a “legitimate, non-discriminatory” reason for termination, the burden shifts back to the employee to show that the employer’s reason was not true. So, if an employer claims the employee was fired for poor performance, yet the employee has always had excellent performance reviews, this could satisfy the employee’s burden of proving the employer’s reason is not worthy of belief or “pretextual.”

Ask Why You’re Being Fired

If an employee thinks they’ve been fired unlawfully it never hurts to ask why.  Sometimes, an employer will open-up and give you hints into the real reason you were fired.  Direct evidence of unlawful termination is extremely rare these days.  Most unlawful termination cases are built on circumstantial evidence.  Admissions of fact by the decision-maker at the termination meeting could make the difference between winning and losing an unlawful termination case in Florida.

Signing Termination Paperwork

First, before signing anything you should always read what you’re signing.  This is good advice in everything you do.

Second, if the paper work cites to the reason why you’re fired and you disagree with that reason, write somewhere on the margin that you disagree with their reason.  You don’t want that document to be used against you later on as an admission.  For example, if the paperwork says you’re being fired for violating a company policy and you sign acknowledging the paperwork, it could be viewed as you’re agreeing with the employer’s position.  This doesn’t happen often, but you want to make sure the record is clear.

Most paperwork that you sign after a termination is to provide you with information on moving forward.  You’ll like receive information on extending health insurance benefits (COBRA) and rolling over 401k accounts, etc. However, you want to make sure you’re not signing your rights away.  I had a case once where the employee was fired and she was told she had to sign the document.  The employee didn’t read the document and she actually signed a severance release.  Thankfully, we were able to revoke the severance release and file a wrongful termination lawsuit, but had the employee waited she may have lost her right to sue.  So, it’s always a good idea to run any termination paperwork by a qualified employment lawyer first!

For More Information

For more information about unlawful terminations in Florida visit our website at LongoFirm.com. Also, don’t forget to subscribe to our YouTube channel!

The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
Fax: (954) 944-1916

Micah J. Longo
Fla. Bar No. 97333
mlongo@longofirm.com

Can I Be Fired For Being Pregnant In Florida?

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Davie Pregnancy Discrimination LawyerIn Florida, employers are prohibited under Title VII and the Florida Civil Rights Act from discriminating against female workers in the terms and conditions of employment on the basis of pregnancy, childbirth, or related medical conditions. To be protected from pregnancy discrimination you must work for company that has at least 15 workers.

How Do You Prove Pregnancy Discrimination?

By showing that the pregnancy was a “motivating factor” that prompted the employer’s decision to fire, demote, or deny promotion. You don’t have to prove that the pregnancy was the ONLY reasons for your employer’s decision, just that the pregnancy influenced the decision. So, if a pregnancy made a difference in the employer’s decision, it’s likely to be considered a motivating factor under the law.

To establish a pregnancy discrimination case under Title VII or the Florida Civil Rights Act, a plaintiff must prove the following facts:

  1. Plaintiff suffered an “adverse employment action” such as being fired or being denied a promotion.
  2. Plaintiff’s pregnancy was a “motivating factor” that prompted the adverse employment action.

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Once a plaintiff establishes that an adverse employment action was motivated by a pregnancy, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for their taking an adverse employment action. This is a very light burden and the courts will not second-guess the business decision of the employer.

Pre-Text

Then, the plaintiff must prove that the employer’s proffered legitimate, non-discriminatory reasons is pretext (or not worthy of belief) for unlawful pregnancy discrimination.  In other words, to prove “pretext” a plaintiff must show the employer’s reason for termination is false, and the pregnancy was the reason for the action. A plaintiff must meet this burden “head-on” and cannot win a pregnancy discrimination case by simply disagreeing with the employer’s reasoning or second guessing the business decision of the boss. Pregnancy discrimination plaintiffs have the ultimate burden of proving discriminatory treatment because of the pregnancy, by the greater weight of the evidence.

Typically, you see a pregnancy discrimination case where a women is hired and then after a few months she announces she’s pregnant. The employer, then fires the pregnant woman citing performance issues or other non-discriminatory reasons. The only problem is the plaintiff has always had excellent performance reviews, and she was fired only a few days after announcing her pregnancy. Here, the pregnant plaintiff would have a strong case because she has shown “pretext” or that performance was not the real reason for her termination.

How To Deal With Pregnancy Discrimination?

If you are still employed, the first thing you should do is make a written complaint to your employer. You want to make the employer aware that you feel you’re being treated differently because you’re pregnant.  The easiest way to do this is call a pregnancy discrimination lawyer and explain the situation. Most pregnancy discrimination lawyers in Florida will guide you through the process of exercising your statutorily protected right to complain about unlawful discrimination in the workplace.

When making a discrimination complaint be sure to follow the rules outlines in your handbook about making such complaints.  Usually, you can make the complaint directly to the human resources department. This is especially true when the persons doing the unlawful discrimination is a direct supervisor. When making your written complaint be sure to send it certified mail-return receipt or some other method where you can confirm receipt (i.e. email, FedEx, etc.).  You can also make a complaint with the Equal Employment Opportunity Commission (“EEOC”) called a charge of discrimination. In Florida, a charge of pregnancy discrimination must be filed within 300 days of when the unlawful discrimination took place.

Also, when making your complaint be sure not to sugar-coat the facts. You want to make it very clear that you are complaining about pregnancy discrimination in the workplace. Be as specific as possible. Don’t just say you feel you’re being treated differently, make it clear that you’re being treated differently because you are pregnant.  Again, a qualified Florida pregnancy discrimination lawyer will be able to walk you through this process.

Charge of Discrimination

If you’ve already been fired because of you’re pregnant, you must  file a charge of discrimination with the EEOC and the Florida Commission on Human Relations BEFORE you can file a lawsuit in court. The Florida Commission on Human Relations is the administrative authority that investigates discrimination claims under the Florida Civil Right Act.  As a practical matter, pregnancy discrimination claims under the Florida Civil Rights Act (state claim) is the law you want to sue under because it provides for punitive damages and suing in state court is a much friendly venue for plaintiffs then federal court under Title VII.  As a side note, Title VII (federal law) is virtually the same substantive law as the Florida Civil Rights Act (state law).

Pregnancy Discrimination Settlements

If you win a pregnancy discrimination lawsuit in Florida you may receive compensatory damages as full, just, and reasonable compensation for all of your damages as a result of your employer’s unlawful pregnancy discrimination. It’s important to remember that compensatory damages are not imposed to penalize the employer and cannot be based on speculation or guess-work.

Under, Title VII a pregnancy discrimination plaintiff is entitled to net lost wages (and benefits) from the date of the adverse employment action and the date of the jury verdict and, emotional pain and mental anguish.  Under the Florida Civil Rights Act, a pregnancy discrimination plaintiff is entitled to punitive damages for intentional acts of discrimination in the amount of $100,000.00.

For More Information

Visit The Longo Firm Website for more information about pregnancy discrimination in Florida under Title VII and the Florida Civil Rights Act.  Also, don’t forget to subscribe to our YouTube Channel!

The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel:  (954) 862-3608
Fax: (954) 944-1916

Micah Longo
mlongo@longofirm.com
Fla. Bar No. 97333

 

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