![]() When responding to such objections, defense attorneys should be prepared to argue that Nucci does not limit social media discovery solely to photographs it allows for the discovery of social media evidence that is relevant and reasonably calculated to lead to the discovery of admissible evidence. Defense attorneys can expect objections to any social media-related discovery requests that exceed those contemplated by the Nucci court. Some plaintiff attorneys have adapted to the Nucci decision and now argue that, at most, the opinion only permits discovery identical to that discussed in Nucci-social media photographs preceding a date of loss by no more than two years. Because the information shared on a social networking site can be copied and disseminated by another user, the Fourth District wrote, “he expectation that such information is private, in the traditional sense of the word, is not a reasonable one.” Notably, the Fourth District held that, generally, photographs on a social networking site are not privileged, nor are they protected by any right of privacy, regardless of the privacy settings a user elects to establish on their account. In a thorough opinion that cited to and adopted reasoning from courts across the country, the Fourth District denied the plaintiff’s petition for certiorari and upheld the trial court’s order. Seeking certiorari relief, the plaintiff sought to quash the trial court’s order compelling production of the photographs, arguing the order violated her right to privacy. The trial court ultimately compelled the plaintiff to produce, among other things, all photographs associated with the account for the two years prior to the incident to the present. After the trial court denied its motion, the defendant filed narrower discovery requests. The plaintiff argued such access was overbroad and would violate her right to privacy. When photographs seemingly disappeared after the plaintiff’s deposition, the defendant moved to compel inspection of the plaintiff’s Facebook profile. Prior to the plaintiff’s deposition, defense counsel saw that her Facebook profile contained 1,285 photographs. 4th DCA 2015), in which the plaintiff slipped and fell in a Target store. One of the first cases defense attorneys should rely upon is the Fourth District Court of Appeal’s opinion in Nucci v. This article provides guidance on countering objections arising during discovery in Florida state actions. Not surprisingly, many plaintiffs now object to any discovery requests seeking social media information on grounds including overbreadth, vagueness and violation of the right to privacy. Despite its ubiquity, many people-including plaintiffs in personal injury lawsuits-continue to share information on their social media accounts that can be a boon to defense counsel but disastrous to their own claims. ![]() ![]() ![]() And social media’s footprint is ever-expanding-as of the third quarter of 2017, Facebook had more than 2 billion monthly active users, up from 1 billion in 2012. Posts, tweets, grams and snaps have entirely different meanings in today’s lexicon than they did a decade ago. ![]() Facebook launched in 2004, Twitter in 2006, Instagram in 2010. While seemingly still a modern marvel, social media as we know it today is actually entering its teenage years. To maximize the likelihood of obtaining requested social media evidence, carefully craft interrogatories and requests for production to encompass relevant and reasonably calculated materials.Social media evidence is generally discoverable, not subject to privilege and not protected by a right to privacy. ![]()
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