Florida Court Says, “No Phishing Expeditions Allowed on a Plaintiff’s Facebook Page”

by Wilson Elser

While it is true that social media has become one of the main sources for discovery in personal injury litigation, the basic tenants of discovery that apply to the standard document requests, also apply to this new technological source of information. The question of whether a demand for any and all information on the Facebook page of a grieving mother in a wrongful death lawsuit could lead to the discovery of admissible evidence relevant to her loss of consortium claim was recently addressed by the Appellate Court in Florida. In short, the Court’s latest decision on this issue was a message to defense attorneys that, although information posted on social media has limited privacy rights, the Courts will still not allow a defense attorney to engage in a fishing expedition of a plaintiff’s Facebook page.

The Florida Second District Court of Appeals stated that litigants still have to show some reasonable chance of finding discoverable information relevant to the issues in the case before they can indiscriminately obtain all of the plaintiff’s social media material.  Root v. Balfour Beatty,—So.3d—, (Fla. 2nd DCA. Feb. 05, 2014).  In Root, the defense attorney sought copies of postings on a mother’s Facebook page during the discovery stage of a wrongful death lawsuit she brought after the death of her three year-old son.  The defendant asked for—and the trial court magistery ordered the plaintiff to produce any and all postings, status, photos, “likes” or videos related to Tonia Root’s:

  1. “Relationships with the deceased child or her other children, both prior to and following the accident;
  2. Relationships with other family members, boyfriends, husbands, and or significant others, both prior to and following the accident;
  3. Mental health, stress complaints, alcohol use or other substance abuse, both prior to and after, the accident; and
  4. Facebook account postings related to any lawsuit filed after the accident by Tonia Root or other.”

The defendants did not assert that the social media discovery applied to the allegations of negligence, but claimed it did relate to Root’s claim for loss of consortium.  The appellate court disagreed stating that Root’s relationships with other family members and significant others, her mental health history and her substance abuse history were clearly a fishing expedition not related to her loss of companionship, society, love, affection, and solace of the deceased child.  The appellate court noted that the defendants had taken Root’s deposition but never pointed to any of her testimony that made some of the requested information relevant to her loss of consortium claim.

One of the defendant’s attorneys even made arguments at the hearings before the Magistrate that supported the appellate court’s ruling.  The defense attorney said, “These are all things that we would like to look under the hood, so to speak and figure out whether that is even a theory worth exploring.”  Then the Magistrate acknowledged that the relevancy might be a problem by noting that “95% percent or 99% percent of this may not be relevant.”  The Magistrate also was concerned about how much material he might have to look at in camera.

The appellate court noted that while “trial courts around the country have repeatedly determined that social media evidence is discoverable, discovery of information on social networking sites [still] simply requires applying ‘basic discovery principles in a novel context.”

Practice Pointers

This decision is helpful, since it reminds us that social media and information contained on a plaintiff’s social networking site like Facebook, is no different than other sources of discovery, such as medical records and financial records. Attorneys need to lay the groundwork to establish the relevancy of a plaintiff’s social media publications to their claims made in the lawsuit, during their deposition of the plaintiff by asking plaintiffs questions at their deposition that establish why relationships with family members or significant others could lead to the discovery of admissible evidence.   For example, if a defense attorney believes that a plaintiff is embellishing a claim of mental anguish to enhance damages, a thorough line of questioning may uncover that plaintiff seeks solace through confiding with close friends or family about a difficult situation caused by injuries from the accident. This helps establish how social media posts can lead to the discovery of admissible evidence.  In our view, the deposition, rather than requests to produce or subpoenas, is a better place to build a relevance foundation as it will result in spontaneous responses-rather than the plaintiff’s answer to a document request or subpoena crafted by the plaintiff’s attorney and prefaced by legal objections. Armed with the candid information from plaintiff about their use of social media and social networking sites obtained through their deposition, the defense attorney would be in a better position to explain to a trial court how a broader range of Facebook or other social media posts could be relevant to the claims or defenses at hand.

In a products liability action, the discovery of social media posts could be specifically directed to the plaintiff’s use of the product or similar products before and after the accident, or the plaintiff’s research regarding the product before the accident.  The plaintiff may have even joined industry networks and discussion groups or “liked” certain company pages which are related to the subject product or activity involving the product.  Directing your social media discovery requests to these specific areas would likely meet the Root threshold of relevance because they relate to the plaintiff’s’ experience and knowledge regarding the use of the product and known dangers, as well as the plaintiff’s thought process when they decided to buy the product.  We encourage our readers to post their own comments or thoughts on this particular topic.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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