Being Reasonable is a Good Approach to Obtaining Social Media Discovery  

Subrogation & Recovery Alert

February 10, 2015

Social media, whether it be posted comments, photographs, video footage or other media, has clearly emerged as a new and sometimes generous source of information to assist with recovery efforts. From insureds to possible targets to third-party witnesses, people are now more accustomed to posting what occurs in their daily lives to their social media accounts, which also necessarily means there is a good chance loss related information has and will continue to find its way into the world of social media. But often times, What is and what is not discoverable when it comes to “social media”? is a question that gives insurance claims professionals and their subrogation counsel a moment of pause when litigating a subrogation claim and considering whether to explore social media as source of useful information. Three recent cases in Florida, provide further guidance on how far a litigant can go in seeking discovery of social media. The lessons from these cases are that the trend is changing, and that obtaining relevant information from social media during discovery is possible if you can demonstrate relevance and take a reasonable approach in your requests.

On January 7, 2015, Florida’s Third District Court of Appeal issued an opinion in Nucci v. Target Corporation, 2015 WL 71726 (Fla. 3d DCA 2015), Docket No. 4D14-138, in which the court allowed Target to obtain data from the Facebook account of a plaintiff, Maria Leon Nucci, who claimed a personal injury from a slip and fall at a Target store. The data consisted of photographs and cell phone records. Specifically, the opinion compelled Ms. Nucci to answer the focused interrogatories and requests for production of documents related to her Facebook account, other social media sites she maintained, and her cell phone records.

This recent decision marks a recognition of the usefulness of social media in discovery in Florida, and it was in stark contrast to two Florida opinions that had entirely denied broad social media discovery only a few months prior, in the cases of Salvato v. Miley, No. 5:12-CV-635-Oc-10PRI, 2013 WL 2712206 (M.D. Fla. June 11, 2013) and Root v. Balfour Beatty Construction, LLC, 132 So. 3d 867 (Fla. 2d DCA 2014). The key to why Nucci allowed social media discovery, where Salvato and Root had denied it, is the concept of a “threshold showing,” i.e., an initial proffer by the party seeking discovery as to why it is specifically relevant to the particular claims at issue.

No Threshold Showing in Salvato and Root

In Salvato, the court denied entirely a request for production, made by the plaintiff (a surviving parent of a gunshot victim), of emails and text messages of the police officer plaintiff sued for alleged excessive force and failure to provide medical treatment. The court noted the plaintiff failed to make a threshold showing of the relevance of the social media discovery in that plaintiff merely argued that it was “seeking information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.” The court stated, “The mere hope that Brown’s private text messages, emails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties. Indeed, plaintiff has essentially sought permission to conduct ‘a fishing expedition’ on the mere hope of finding relevant evidence” (citations and internal quotes omitted).

In Root, the court also denied entirely a broad set of discovery requests propounded by a defendant for plaintiff’s Facebook account data in a case where plaintiff, Tonia Root, was the mother of a three-year-old injured when struck by a car on a construction site and claimed loss of parental consortium. The discovery sought, and denied, included the following:

Any and all postings, statuses, photos, “likes” or videos related to Tonia Root's

i. Relationships with Gage or her other children, both prior to, and following, the accident;

ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;

iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;

v. Facebook account postings relating to any lawsuit filed after the accident by Tonia Root or others.

In denying such discovery, the court in Root stated:

The requested discovery also appears at this time to be irrelevant to Root's claims for loss of consortium. Although Root's deposition has been taken, Defendants do not point to anything claimed by her in support of their contention that the requested information is relevant and discoverable. Generally, any such discovery should have been limited to that related to the impact of Gage's injury upon Root.

Threshold Showing in Nucci

Key to the recent Nucci decision was the following threshold showing made by the defendant:

  • Target’s lawyer viewed Nucci’s Facebook profile before deposing Nucci and saw that it listed 1,285 photographs.
  • Target’s lawyer deposed Nucci to confirm the Facebook account listing and requested permission to view the photographs, but met with objection.
  • Target’s lawyer viewed the Facebook profile two days after the deposition but found it only now listed 1,249 photographs, indicating Nucci may have taken 36 photos off her account, potentially after the deposition.
  • Target also conducted surveillance of Nucci and showed the court photographs from the surveillance video showing Nucci walking with two purses on her shoulders or carrying two jugs of water.

Unlike the prior two Florida cases, the critical difference in Nucci was that Target had essentially shown what it was seeking was specific and relevant, tying it to other information they had discovered. In lofty language, the court in Nucci emphasized why the photographic data being sought was “worth a thousand words”:

In a personal injury case 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. From testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff’s life was like prior to an accident. It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life. 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 lawsuit. The relevance of the photographs is enhanced, because the post-accident surveillance videos of Nucci 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. The production order is not overly broad under the circumstances, as it is limited to the two years prior to the incident up to the present; the photographs sought are easily accessed and exist in electronic form, so compliance with the order is not onerous.

What We Can Learn from Nucci

As the above explanation from the court in Nucci shows, relevance and reasonableness appear to have been key factors in the court’s decision. Recovery professionals should keep this in mind, because if there are issues in the case that are specifically tied to social media of the target or witnesses, showing a link between those issues, whether they be claims or defenses, to social media will go a long way to making a threshold showing of relevance to obtain discovery of social media. Making a reasonable request, one tailored to the issues and information you actually need, will also assist you in demonstrating the soundness of your request in the context of the case. Sometimes asking for less is more and, when considering discovery of social media, seeking specific and limited information and media can often be the difference between getting the discovery you really need and being denied access.

Conclusion

The Nucci case is an excellent example for recovery professionals and their counsel of how to seek and ask for social media discovery in a responsible fashion. As did Target’s lawyers, a party seeking such discovery is well advised to keep the discovery narrowly focused and to take some additional steps in support of a threshold showing of particular relevancy. Simply sending out a set of broad-based discovery requests is more likely to result in a wholesale denial as in Salvato and Root, whereas a focused request linked to issues and claims in the case is more likely to result in a grant of the discovery you really need. Sometimes, just getting that one photo that is worth a thousand words is all you need, not broad based social media discovery.

 


Authors

Joseph F. Rich

Member

jrich@cozen.com

(786) 871-3941

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