Photos 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.
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