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Social Media Evidence v Privacy Limitations

Nucci v. Target Corp [2015] 

If a photograph is worth a thousand words, 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. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the case at hand. [Appellate Court Judgement].


Motion to Compel Facebook Images v. Right to Privacy

This decision regards a personal injury case in the Florida Appellate Court and a compelled production of the plaintiff’s Facebook photos. The Court denied the plaintiff’s request to quash the order to compel production of images, stating that it “stands 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 photographs at hand were “reasonably calculated to lead to admissible evidence and the Plaintiff’s privacy interest in them was minimal, if any”  and the Fourth District Court of Appeal said the “relevance of the photographs overwhelms Nucci’s minimal privacy interest in them.”

The plaintiff’s initial claim was based on falling in  a Target store, allegedly suffering consequential injuries, pain, incurring medical costs, loss of income and an impaired quality of life.

Target subsequently filed a motion to compel inspection of Nucci’s Facebook account, and requested that the plaintiff refrain from deleting any potentially relevant information on any social media sites. Target’s counsel claimed they were entitled to gain access to the plaintiff’s Facebook page as a potentially documented physical and mental state were at issue in this case. When Target’s lawyer first viewed her Facebook profile, it contained 1,285 photos. At a deposition on September 4, 2013, Nucci objected to disclosing her Facebook photos and two days later, her Facebook profile listed 1,249 photo

Nucci claimed that in line with Facebook’s standard privacy settings, she had incurred a “reasonable expectation of privacy” from unregulated access to her account and if Target were to access this information it would be an invasion of privacy and result in a fishing expedition. Nucci further argued that her private Facebook posts were covered under the Federal Stored Communications Act (“SCA”), 18. U.S.C. SEC. 2701-2712 and were therefore not discoverable.


A Balancing Act

In the trial court’s hearing on the motion to compel access to Nucci’s Facebook account, it was held that the potential relevance of Facebook photos to the case at hand outweighed the Plaintiff’s right to privacy. Target also claimed that there was no inherent constitutional right to privacy in Facebook photos, however the trial court denied Target’s motion to compel as “vague, overly broad and unduly burdensome”.

In siding with Target, the Fourth DCA said: “The relevance of the photographs is enhanced, because the post-accident surveillance videos of Nucci [showing her carrying heavy bags and jugs of water], suggest that her injury claims are suspect and that she may not be an accurate reporter of her pre-accident life or of the quality of her life since then.


Over broad, Unattainable and Onerous Production - not always the case.

In denying the petition for writ of certiorari, the Appellate court held that the production order was not overly broad due to limitations on production, and the photos are easily accessible and so efforts to comply would not be onerous on the plaintiff. The court also rejected the claim that the Stored Communications Act applied to the case, as it generally prevents ISPs from sharing and exploiting communications to third parties and cannot be invoked by individuals’ use. By creating a Facebook account, a user places information, images and more on the internet - and must acknowledge that personal information will be shared with others; as that is the very purpose of social networking. Therefore negating any claims of privacy being provided by Facebook.

“Before the right to privacy attaches, there must exist a legitimate expectation of privacy,


The Role of WebPreserver

WebPreserver is an innovative eDiscovery tool, essential for the effective and easy creation of evidence from social media and preservation of digital content for litigation purposes, aimed specifically at legal professionals, litigation support and law enforcement officials.

Snapshots of social media content are created and authenticated with the efficient and simple use of a Plug-in and single-click capture in line with Federal Rules of Evidence and other compliance standards, creating reliable evidence for litigation proceedings.

Snapshots are saved in both PDF and WARC formats and authenticated with the advanced technology of both an e-signature (in compliance with the E-Sign Act) and an automated time stamp giving integrity to content taken from social media. WebPreserver provides the additional resources of an online sharing platform where litigation support and legal professionals can share personal files of evidence with colleagues and clients, download them locally, and organise with keyword tagging.

The growing importance of social media content as evidence in the courtroom means that firms and law enforcement authorities should have a simplified, cost and time effective records management structure in place to ensure fair trials and outcomes – WebPreserver is the essential eDiscovery tool that provides such a service


The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.

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