Discovery of facebook content in civil litigation

In the first few years of my practice of law there was no facebook or myspace.  The little social media that existed consisted of bulletin boards or AOL chatrooms.  As a result there were no discovery disputes about the production of material within facebook accounts.  Today, very few cases of any type hit my desk where social media content doesn’t play some role in litigation.  It might be the facebook photos and responses under it of a cheating spouse and his paramour, bar room  pictures of a defendant drinking alcohol on the night of a collision, or pictures of a injured party doing some activity after a car wreck the the person claims he cannot do.  Regardless of the circumstances, the party with the facebook page claims the content is privileged or protected and the other party claims the opposite leaving the court to sort it out.

The recent case of Nucci v. Target Corp, et al from the Florida Fourth District Court of Appeals highlights one of these disputes.   Maria Nucci filed a lawsuit claiming she slipped and fell on the floor of a Target store.  She alleged:

• bodily injury
• pain from the injury
• medical, hospital, and nursing expenses
• suffered physical handicap
• emotional pain and suffering
• lost earnings
• Lost the ability to earn money
• Lost or suffered a diminution of ability to enjoy her life
• Suffered aggravation of preexisting injuries
• Suffered permanent or continuing injuries
• Will continue to suffer the losses and impairment in the future

According to the court’s decision:

Target took Nucci’s deposition on September 4, 2013. Before the deposition, Target’s lawyer viewed Nucci’s Facebook profile and saw that it contained 1,285 photographs. At the deposition, Nucci objected to disclosing her Facebook photographs. Target’s lawyer examined Nucci’s Facebook profile two days after the deposition and saw that it listed only 1,249 photographs. On September 9, 2013, Target moved to compel inspection of Nucci’s Facebook profile. Target wrote to Nucci and asked that she not destroy further information posted on her social media websites. Target argued that it was entitled to view the profile because Nucci’s lawsuit put her physical and mental condition at issue.

Nucci v. Target Corp. at page 2.

Target served Nucci with a set of Electronic Media Interrogatories and a Request for Production of Electronic Media.  Nucci entered objections on the grounds of (1) privacy; (2) items not readily accessible; and (3) relevance, (4) overbroad; (5) brought solely to harass; (6) “over[ly] burdensome;” (7) “unduly burdensome”; and (9) unduly vague.

The Court found in favor of allowing the discovery despite Nucci’s objections.

[T]he photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established. Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships. Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Because information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another, the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.

Nucci v. Target Corp. at page 9 (internal citations and quotations omitted).

A more difficult question is can an attorney advise a client to “clean up” a social media or facebook profile before litigation starts.  Roughly two weeks after the Nucci decision was released, the Professional Ethics Committee of the Florida Bar issued Proposed Advisory Opinion 14-1 discussing the issue and advised that the practice was acceptable in certain limited situations.

The committee also agrees that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence. The committee is of the opinion that if the lawyer does so, an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

The committee is of the opinion that the general obligation of competence may require the inquirer to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of evidence, regardless of the privacy settings. If a client specifically asks the inquirer regarding 109 removal of information, the lawyer’s advice must comply with Rule 4-3.4(a). What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.

In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.

Keep in mind this is only a proposed opinion, it is limited to Florida and has enough “known” or “reasonably known” thrown in that it should make any lawyer think twice before counseling a client to destroy any social media content.

Courts in other states may not view the issue the same.  For example, in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) a Virginia Court upheld sanctions of $542,000 against a lawyer and $180,000 against the client for spoliation of evidence when the client, at the lawyer’s direction, deleted photographs from client’s social media page, the client deleted the accounts, and the lawyer signed discovery requests that the client did not have the accounts.  As a side note, the main photograph they were apparently trying to suppress was one of the plaintiff wearing a shirt stating “I love hot moms.”  The half a million in sanctions to the lawyer wasn’t the end of it as later the attorney agreed to a five year suspension of his law license.

The takeaway from all of this is simple.  If your social media presence is contrary to your litigation claims, the other side will eventually find out.  If you attempt the delete your social media presence, the other side will eventually find out.  When they catch you being dishonest, your case will go down the toilet and you may very well end up owing the other side some significant attorney’s fees.  In two words—-Be honest.