Florida Rules of Civil Procedure Still Apply to ESI

In JDSupra Business Advisor, Attorney Robert Rogers writes a summary of a recent Florida case, Nucci v. Target Corp., 40 Fla. L. Weekly D166a (Fla. 4th DCA Jan. 7, 2015). Mr. Rogers sets forth, “A Florida appellate court has ordered a plaintiff to produce photographs from her “private” Facebook page in an important decision holding that Facebook users’ privacy interests in the content they post – regardless of the account settings they choose – are “minimal, if any.”

It is worthwhile to point out a few details of the case, which were not highlighted in Mr. Rogers summary and affect the broad application Mr. Rogers and others are making of the trial court’s and the appellate court’s decisions.

The Nucci v. Target case involved a personal injury action in which Target, as a part of their discovery, found the plaintiff’s Facebook page and requested the photographs included on it. The Facebook page had privacy settings, so Target’s lawyers could not view the photographs on that site, but they were able to determine that 1285 photographs existed on the site. During her deposition, the Target lawyers requested the photographs and plaintiff refused to produce them. As a comment on what not to do in this situation, Target’s lawyers viewed the Facebook page two days after the deposition and found there were 36 less photographs on it.

The trial court ordered production of the photographs and the appellate court affirmed. The trial court made the point that the plaintiff, by posting the photographs on her Facebook page “has but a limited privacy interest, if any, in pictures posted on her social networking sites.”

Discovery of electronically stored information (ESI) remains governed by Fla. R. Civ. Pro. 1.280 in terms of the scope and the requesting party must make some initial showing that the information requested “appears reasonably calculated to lead to the discovery of admissible evidence.”

In the Nucci v. Target case, Target had conducted surveillance of the plaintiff in which she is depicted “carrying heavy bags, jugs of water, and doing other physical acts, suggesting that her claim for serious personal injury is suspect.” In addition, Target narrowed its request for photographs to only those depicting the plaintiff two years before the subject accident. The plaintiff’s did not seek to limit the scope of the photograph discovery or seek an in camera by the Court.

Because of the surveillance tape and Target’s narrowing of its request, the Court had more than sufficient basis to rule this was not a “fishing expedition” and ample evidence existed that what the discovery would produce was “reasonably calculated to lead to the discovery of admissible evidence.”

The Court ruled the plaintiff’s Facebook site enjoys no privacy or limited privacy protection, but the scope of discovery under Fla. R. Civ. Pro. 1.280 was not ignored or eradicated in the Court’s determination. The requesting party must still demonstrate that the discovery requested “appears reasonably calculated to lead to the discovery of admissible evidence.”