The practice of law is ever-changing. An attorney must never sit on his or heels content that years of experience have provided the knowledge required to remain on top of the game. As technology progresses at an exponential pace, the law tries to keep up.
With the advent and popularity of social media – Facebook, Twitter, and Pinterest, to name a few – discovery issues regarding a defendant’s ability to obtain information posted to these sites by an injured claimant have exploded. These issues often arise in personal injury cases in which defendants (those accused of causing the injuries) want to find out what an injured person has shared to his or her friends. This information can inform the defendant about the cause of an accident, and, more commonly, it can provide the defendant with information about the types of physical activities in which the injured person can still engage, and, more generally, about the quality of his or her life after the accident.
Not only are the defendants requesting screen shots of social media posts, they also commonly request passwords so they can access the person’s page in the same manner as her or she would do. This type of request is clearly objectionable as the defendant would then be able to read private messages between the client and his or her friends, and, conceivably, his or her attorney as well.
In extreme instances, a defendant will request to examine the plaintiff’s actual computer, telephone and any other device used to access the internet. The privacy implications are obvious. Although a plaintiff loses certain rights of privacy once a lawsuit is filed for injuries, such as those relating to medical records, private matters unrelated to the accident or injuries remain protected by Article I, Section 23, of the Florida Constitution.
What results is a balancing act through which judges must weigh these competing interests. Below, I have summarized some recent decisions addressing these issues.
A Duval County Circuit Court Judge recently held that a request for every single social media post made by a plaintiff before and after the accident was overly broad. In so doing, the Court indicated that a more narrow request that is tailored to the issues of the case accompanied with an agreement to keep the posts confidential would be permissible. In this regard, posts regarding the accident, resulting personal injuries or those relating to physical activities before and after the accident may be allowable.
In another case, a Duval County Circuit Court Judge ruled that all photographs posted by the plaintiff after the accident are properly discoverable. However, the Judge denied the defendant’s request that the plaintiff produce his computer hard drive as this is a rather obvious infringement on the plaintiff’s privacy rights. That the request for the hard drive was even made seems surprising, to say the least.
A Federal Magistrate for the United States District Court for the Middle District of Florida, Jacksonville Division, held that any photographs posted that depict the plaintiff after the accident can be obtained by the defendant. However, as with the decision regarding the hard drive discussed above, the Court held that the request for all devices is overly broad and would allow the defendant to “rummage at will through information that Plaintiff has limited from public view.”
So far it appears that the Jacksonville area judges have come to the conclusion that a defendant is not entitled to all of the information an injured person posts to social media sites. Rather, photographs and other posts relevant to the issues of the case, especially those depicting physical activities, are discoverable. Personal injury plaintiffs should be made aware by their attorneys that such posts can give the wrong impression and should be avoided.