Tiffany Hendricks – The Florida Fourth District Court of Appeal released a groundbreaking opinion in Nucci v. Target Corp., et al., denying plaintiffs’ right to privacy argument in response to a motion to compel discovery of their Facebook information. The court reasoned: “[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.”
The popularity of social networking sites has not shown any signs of waning. A 2014 Pew Research study revealed that, as of January 2014, seventy-four percent (74%) of online adults use social media. Moreover, fifty-two percent (52%) of American online adults use two or more social media sites, and seventy-one percent (71%) of these users are on Facebook.
The right to access social media content during litigation has created new tensions between a right to privacy over that content and the right to include relevant materials in the broad permissible scope of discovery matters. With the large presence of Americans on Social Networking Sites (“SNS”) and social apps, attorneys are now using social media as a key discovery method to access relevant evidence to which they otherwise would never have had access.
Litigants are often forced to turn over their social media content and to subsequently oppose motions to compel utilizing a right to privacy argument. The Nucci case is likely to be cited in many jurisdictions across the nation as persuasive opinion against the right to privacy argument for SNS. Presently, courts are using three inconsistent approaches to determine the admissibility of social media content–specifically, information made available on the public portions of a litigant’s social media account: factual predicate, reasonably particular, and exchange of username and password. While there are other approaches used by courts, these commonly used approaches have relied on traditional broad discovery rules to find that there is no reasonable expectation of privacy with regard to social media content.
First, the factual predicate approach requires litigants must identify relevant, publicly available content on social media that leads them to believe that potentially admissible evidence may be hidden by privacy settings. Presently, courts are not consistent as to when they will find a factual predicate has been met. For example, a Florida court in Levine v. Culligan of Florida, Inc. denied the defendant’s argument to grant access to plaintiff’s private Facebook account because relevant information may exist to rebut the plaintiff’s personal injury. The court explained that the defendant failed to point to specific factual evidence on the public portions in order to grant access. Conversely, another Florida court in Beswick v. Northwest Medical Center permitted defendants to access the plaintiff’s private Facebook account. The defendant argued that access to the social media website’s contents were necessary in order to properly defend against the Plaintiffs’ noneconomic damages claims.
The second approach used by courts requires a relevancy showing and a “reasonably particular” discovery request. In an employment discrimination case, Mailholt v. Home Depot U.S.A., the plaintiff allegedly suffered mental and emotional distress. The court relied on the Federal Rule of Civil Procedure 34 requirement for reasonable particularity when requesting electronically stored information. The court applied this reasonable particularity requirement to determine whether, in that case, Home Depot could access the plaintiff’s social media page to defend the case.
The third approach courts grant access to social media is requires the nonmoving party to exchange their usernames and passwords to grant access to social media. Often, the party compelled to turn over its social media account information challenge the court ordered exchange on the basis of confidentiality and right to privacy. In McMillen v. Hummingbird Speedway, Inc, a personal injury case, the defendant sought to access the plaintiff’s social media account and requested production of their username, login names, and passwords. The plaintiff objected arguing the information was confidential. After viewing comments and photos that contradicted the plaintiff’s pain and suffering claims, the defendant filed a motion to compel the plaintiff to turn over their usernames and passwords. The court granted the motion to compel and rejected the plaintiff’s argument that their SNS is confidential.
The Nucci decision is likely to weaken the right to privacy arguments that litigants may use to defend against motions to compel access to their social media content. In today’s digital age, however, courts cannot turn a blind eye to the overwhelming importance and role social media plays in our culture.
As such, courts should take certain steps in order to ensure an appropriate balance between broad discovery standard and private users SNS content. First, courts should acknowledge that social media users might have a reasonable expectation of privacy to the content on their social media by looking at the affirmative steps an individual took to protect that information from the general public. Second, courts cannot simply rely solely on the factual predicate approach because this method assumes that content on public portions of a SNS account hint to the likelihood that relevant information may be hidden under the privacy settings. Authorizing a litigant to access private material can arguably rise to a level of a fishing expedition. Third, both judges and attorneys must be competent in the way SNS works in order to promote a more fair and just discovery process for litigants.
When discussing the privacy implications of GPS tracking devices in United States v. Jones, Justice Sotomayor recognized in her concurrence opinion, “in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative….[a legislative body] is well situated to gauge public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” Thus, courts should consider if it is in the interest of justice to permit such broad access to the social media content that so many Americans use as a way to share personal information.