Maria F. Leon Nucci and Henry Leon v. Target Corporation, American Cleaning Contracting, Inc. and First Choice Building Maintenance, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARIA F. LEON NUCCI and HENRY LEON, her husband,
Petitioners,
v.
TARGET CORPORATION, AMERICAN CLEANING CONTRACTING,
INC., and FIRST CHOICE BUILDING MAINTENANCE, INC.,
Respondents.
No. 4D14-138
[January 7, 2015]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case
No. 10-45572 (21).
John H. Pelzer of Greenspoon Marder, P.A., Fort Lauderdale, and Victor
Kline of Greenspoon Marder, P.A., Orlando, for petitioners.
Nicolette N. John and Thomas W. Paradise of Vernis & Bowling of
Broward, P.A., Hollywood, for respondent, Target Corporation.
GROSS, J.
In a personal injury case, Maria Nucci petitions for certiorari relief to
quash a December 12, 2013 order compelling discovery of photographs
from her Facebook account. The photographs sought were reasonably
calculated to lead to the discovery of admissible evidence and Nucci’s
privacy interest in them was minimal, if any. Because the discovery order
did not amount to a departure from the essential requirements of law, we
deny the petition.
In her personal injury lawsuit, Nucci claimed that on February 4, 2010,
she slipped and fell on a foreign substance on the floor of a Target store.
In the complaint, she alleged the following:
 Suffered bodily injury
 Experienced pain from the injury
 Incurred medical, hospital, and nursing expenses, suffered
physical handicap
 Suffered 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
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’s response to the motion explained that, since its creation, her
Facebook page had been on a privacy setting that prevented the general
public from having access to her account. She claimed that she had a
reasonable expectation of privacy regarding her Facebook information and
that Target’s access would invade that privacy right. In addition, Nucci
argued that Target’s motion was an overbroad fishing expedition.
On October 17, 2013, the trial court conducted a hearing on Target’s
motion to compel. At the hearing, Target showed the court photographs
from a surveillance video in which Nucci could be seen walking with two
purses on her shoulders or carrying two jugs of water. Again, Target
argued that because Nucci had put her physical condition at question, the
relevancy of the Facebook photographs outweighed Nucci’s right to
privacy. It also argued that there was no constitutional right to privacy in
photographs posted on Facebook. The circuit court denied Target’s motion
to compel, in part because the request was “vague, overly broad and
unduly burdensome.”
Target responded to the court’s ruling by filing narrower, more focused
discovery requests. Target served Nucci with a set of Electronic Media
Interrogatories, with four questions. It also served a Request for
Production of Electronic Media, requesting nine items. In response to the
interrogatories, Nucci objected on the grounds of (1) privacy; (2) items not
readily accessible; and (3) relevance.
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As to the Request for Production, Nucci raised the same three
objections and additionally argued that the request was (4) overbroad; (5)
brought solely to harass; (6) “over[ly] burdensome;” (7) “unduly
burdensome”; and (9) unduly vague. Nucci raised only these general
claims and no objections specifically directed at any particular
photograph.
Target moved that the trial court disallow Nucci’s objections. At a
hearing on the motion, Target conceded that its request for production
should be limited to photographs depicting Nucci. After a hearing on the
motion, the trial court granted Target’s motion in part and denied it in
part. On December 12, 2013, the trial court compelled answers to the
following interrogatories:
1. Identify all social/professional networking websites that
Plaintiff is registered with currently (such as Facebook,
MySpace, LinkedIn, Meetup.com, MyLife, etc.)
2. Please list the number and service carrier associated with
each cellular telephone used by the Plaintiff and/or registered
in the Plaintiff’s name (this includes all numbers registered to
and/or used by the Plaintiff under a “family plan” or similar
service) at the time of loss and currently.
The order also compelled production of the following items:
1. For each social networking account listed in response to the
interrogatories, please provide copies or screenshots of all
photographs associated with that account during the two
(2) years prior to the date of loss.
2. For each social networking account listed in the
interrogatories, provide copies or screenshots of all
photographs associated with that account from the date
of loss to present.
3. For each cell phone listed in the interrogatories, please provide
copies or screenshots of all photographs associated with
that account during the two years prior to the date of loss.
4. For each cellular phone listed in response to the
interrogatories, please provide copies or screenshots of all
photographs associated with that account from the date
of loss to present.
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5. For each cellular phone listed in the interrogatories, please
provide copies of any documentation outlining what calls
were made or received on the date of loss.
Nucci argues that the December 12 order departs from the essential
requirements of the law because it constitutes an invasion of privacy.1
Citing to Salvato v. Miley, No. 5:12-CV-635-Oc-10PRI, 2013 WL 2712206(M.D. Fla. June 11, 2013), which involved a request for e-mails and text
messages, she contends that “the mere hope” that the discovery yields
relevant evidence is not enough to warrant production. She also argues
that the traditional rules of relevancy still apply to a request for social
media materials. Nucci additionally asserts that her activation of privacy
settings demonstrates an invocation of federal law. See Ehling v.
Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 665 (D.N.J.
2013). Relying upon Ehling, Nucci argues that her private Facebook posts
were covered by the Federal Stored Communications Act (“SCA”), 18 U.S.C.
§§ 2701-2712, and were not therefore discoverable. We note that Nucci
objected below to all disclosure; she did not attempt to limit disclosure of
the photographs by establishing discrete guidelines. See Reid v. Ingerman
Smith LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL 6720752, at *2
(E.D.N.Y. Dec. 27, 2012); E.E.O.C. v. Simply Storage Mgmt., LLC, 270
F.R.D. 430, 436 (S.D. Ind. 2010).
In its response, Target points out, as it did below, that surveillance
videos show Nucci carrying heavy bags, jugs of water, and doing other
physical acts, suggesting that her claim of serious personal injury is
suspect.
Target suggests that the material ordered is relevant to Nucci’s claim of
injury in that it allows a comparison of her current physical condition and
limitations to her physical condition and quality of life before the date of
the slip and fall. In its response to this Court, Target concedes that the
order is limited to photographs depicting Nucci from the two years before
the date of the incident to the present. It argues that the trial court did
not grant unfettered access because it did not compel the production of
passwords to her social networking accounts.
As to material injury or harm, Target points out that Nucci has not
claimed that production of any particular photograph or other identifiable
material will cause her damage or embarrassment. Citing to Davenport v.
State Farm Mutual Automobile Insurance Co., No. 3:11-cv-632-J-JBT, 2012
1
The petition challenges the order to produce content from social networking
sites. The petition does not challenge that portion of the orders below pertaining
to a cellular telephone.
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WL 555759 (M.D. Fla. Feb. 21, 2012), Target contends that the content of
social networking sites is not privileged or protected by the right to privacy.
It notes that Facebook’s terms and conditions explain that, regardless of a
user’s intentions, the material contained in a post could be disseminated
by Facebook at its discretion or under court order.
Finally, Target argues that in the context of a civil lawsuit, Florida
courts can compel a party to release relevant records from social
networking sites without implicating or violating the SCA.
Discussion
This case stands at the intersection of a litigant’s privacy interests in
social media postings and the broad discovery allowed in Florida in a civil
case. Consideration of four factors leads to the conclusion that Nucci’s
petition for certiorari should be denied. First, certiorari relief is available
in only a narrow class of cases and this case does not meet the stringent
requirements for certiorari relief. Second, the scope of discovery in civil
cases is broad and discovery rulings by trial courts are reviewed under an
abuse of discretion standard. Third, the information sought—photographs
of Nucci posted on Nucci’s social media sites—is highly relevant. Fourth,
Nucci has but a limited privacy interest, if any, in pictures posted on her
social networking sites.
Nucci’s petition challenges only the discovery of photographs from
social networking sites, such as Facebook. Thus, the order compelling the
answers to interrogatories and production pertaining to a cellular phone
are not at issue. Similarly, our ruling in this case covers neither
communications other than photographs exchanged through electronic
means nor access to other types of information contained on social
networking sites.
Legal Standard for Certiorari
Certiorari is not available to review every erroneous discovery ruling.
To be entitled to certiorari, the petitioner must establish three elements:
“‘(1) a departure from the essential requirements of the law, (2) resulting
in material injury for the remainder of the case (3) that cannot be corrected
on postjudgment appeal.’” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla.
2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812,
822 (Fla. 2004)). The last two elements, often referred to as “irreparable
harm,” are jurisdictional. If a petition fails to make a threshold showing
of irreparable harm, this Court will dismiss the petition. Bared & Co., Inc.
v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996).
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Overbreadth of discovery alone is not a basis for certiorari jurisdiction.
Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC,
99 So. 3d 450, 456 (Fla. 2012). Similarly, mere irrelevance is not enough
to justify certiorari relief. Certiorari may be granted from a discovery order
where a party “affirmatively establishes” that the private information at
issue is not relevant to any issue in the litigation and is not reasonably
calculated to lead to admissible evidence. Id. at 457 (quoting Allstate Ins.
Co. v. Langston, 655 So. 2d 91, 95 (Fla. 1995)); see also Berkeley v. Eisen,
699 So. 2d 789 (Fla. 4th DCA 1997) (granting certiorari relief to protect
privacy rights of non-parties to litigation). “The concept of relevancy has
a much wider application in the discovery context than in the context of
admissible evidence at trial.” Bd. of Trs., 99 So. 3d at 458.
Certiorari relief is discretionary, but this Court should exercise this
discretion only where the party has shown that “‘there has been a violation
of clearly established principle of law resulting in a miscarriage of justice.’”
Williams, 62 So. 3d at 1133 (quoting Haines City Cmty. Dev. v. Heggs, 658
So. 2d 523, 527 (Fla. 1995)). The error must be serious to merit certiorari
relief. Even where a departure from the essential requirements of law is
shown, this Court may still deny the petition as certiorari relief is
discretionary. Id.The Broad Scope of Discovery
A “part[y] may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter of the pending action, whether it
relates to the claim or defense of the party seeking discovery or the claim
or defense of any other party.” Fla. R. Civ. P. 1.280(b)(1). “It is not ground
for objection that the information sought will be inadmissible at the trial if
the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.” Id. (emphasis added). Florida Rule of
Civil Procedure 1.350(a) includes electronically stored information within
the scope of discovery.2 An outer limit of discovery is that “‘litigants are
2Rule 1.350(a) states:
Any party may request any other party (1) to produce and permit
the party making the request, or someone acting in the requesting
party’s behalf, to inspect and copy any designated documents,
including electronically stored information, writings, drawings,
graphs, charts, photographs, phono-records, and other data
compilations from which information can be obtained, translated, if
necessary, by the party to whom the request is directed through
detection devices into reasonably usable form, that constitute or
contain matters within the scope of rule 1.280(b) and that are in
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not entitled to carte blanche discovery of irrelevant material.’” Life Care
Ctrs. of Am. v. Reese, 948 So. 2d 830, 832 (Fla. 5th DCA 2007) (quoting
Tanchel v. Shoemaker, 928 So. 2d 440, 442 (Fla. 5th DCA 2006)). Because
the permissible scope of discovery is so broad, a “trial court is given wide
discretion in dealing with discovery matters, and unless there is a clear
abuse of that discretion, the appellate court will not disturb the trial
court’s order.” Alvarez v. Cooper Tire & Rubber Co., 75 So. 3d 789, 793
(Fla. 4th DCA 2011) (direct appeal of discovery issue). It is because of this
wide discretion accorded to trial judges that it is difficult to establish
certiorari jurisdiction of discovery orders.
In a personal injury case where the plaintiff is seeking intangible
damages, the fact-finder is required to examine the quality of the plaintiff’s
life before and after the accident to determine the extent of the loss. From
testimony alone, it is often difficult for the fact-finder to grasp what a
plaintiff’s life was like prior to an accident. It would take a great novelist,
a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the
totality of a prior life. If a photograph is worth a thousand words, there is
no better portrayal of what an individual’s life was like than those
photographs the individual has chosen to share through social media
before the occurrence of an accident causing injury. Such photographs
are the equivalent of a “day in the life” slide show produced by the plaintiff
before the existence of any motive to manipulate reality. The photographs
sought here are thus powerfully relevant to the damage issues in the
lawsuit. The relevance of the photographs is enhanced, because the post-
accident surveillance videos of Nucci suggest that her injury claims are
suspect and that she may not be an accurate reporter of her pre-accident
life or of the quality of her life since then. The production order is not
overly broad under the circumstances, as it is limited to the two years prior
to the incident up to the present; the photographs sought are easily
accessed and exist in electronic form, so compliance with the order is not
onerous.
The Right of Privacy
To curtail the broad scope of discovery allowed in civil litigation, Nucci
asserts a right of privacy. However, the relevance of the photographs
overwhelms Nucci’s minimal privacy interest in them.
the possession, custody, or control of the party to whom the request
is directed . . . .
(Emphasis added).
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The Florida Constitution expressly protects an individual’s right to
privacy. See Art. I, § 23, Fla. Const. (“Every natural person has the right
to be let alone and free from governmental intrusion into the person’s
private life except as otherwise provided herein.”). This right is broader
than the right to privacy implied in the Federal Constitution. Berkeley,
699 So. 2d at 790. The right to privacy in the Florida Constitution
“ensures that individuals are able ‘to determine for themselves when, how
and to what extent information about them is communicated to others.’”
Shaktman v. State, 553 So. 2d 148, 150 (Fla. 1989) (quoting A. Westin,
Privacy and Freedom 7 (1967)).
Before the right to privacy attaches, there must exist a legitimate
expectation of privacy. Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of
Bus. Regulation, 477 So. 2d 544, 547 (Fla. 1985). Once a legitimate
expectation of privacy is shown, the burden is on the party seeking
disclosure to show the invasion is warranted by a compelling interest and
that the least intrusive means are used. Id. In the civil discovery context,
courts must engage in a balancing test, weighing the need for the discovery
against the privacy interests. Rasmussen v. S. Fla. Blood Serv., Inc., 500
So. 2d 533, 535 (Fla. 1987). If the person raising the privacy bar
establishes the existence of a legitimate expectation of privacy, the party
seeking to obtain the private information has the burden of establishing
need sufficient to outweigh the privacy interest. Berkeley, 699 So. 2d at
791-92.
In a thoughtful opinion, a Palm Beach County circuit judge has
summarized the nature of social networking sites as follows:
Social networking sites, such as Facebook, are free websites
where an individual creates a “profile” which functions as a
personal web page and may include, at the user’s discretion,
numerous photos and a vast array of personal information
including age, employment, education, religious and political
views and various recreational interests. Trail v. Lesko, [No.
GD-10-017249,] 2012 WL 2864004 (Pa. Com. Pl. July 5,
2012). Once a user joins a social networking site, he or she
can use the site to search for “friends” and create linkages to
others based on similar interests. Kelly Ann Bub, Comment,
Privacy’s Role in the Discovery of Social Networking Site
Information, 64 SMU L. Rev. 1433, 1435 (2011).
Through the use of these sites, “users can share a variety of
materials with friends or acquaintances of their choosing,
including tasteless jokes, updates on their love lives, poignant
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reminiscences, business successes, petty complaints, party
photographs, news about their children, or anything else they
choose to disclose.” Bruce E. Boyden, Comment, Oversharing:
Facebook Discovery and the Unbearable Sameness of Internet
Law, 65 Ark. L. Rev. 39, 42 (2012). As a result, social
networking sites can provide a “treasure trove” of information
in litigation. Christopher B. Hopkins, Discovery of Facebook
Contents in Florida Cases, 31 No. 2 Trial Advoc. Q. 14 (2012).
Levine v. Culligan of Fla., Inc., Case No. 50-2011-CA-010339-XXXXMB,
2013 WL 1100404, at *2-*3 (Fla. 15th Cir. Ct. Jan. 29, 2013).
We agree with those cases concluding that, generally, the 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. See Davenport v. State Farm Mut. Auto. Ins. Co., No.
3:11-cv-632-J-JBT, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012); see
also Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311, 312 (N.Y. App.
2011) (holding that the “postings on plaintiff’s online Facebook account, if
relevant, are not shielded from discovery merely because plaintiff used the
service’s privacy settings to restrict access”). 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. Romano v. Steelcase, Inc., 907 N.Y.S.2d
650, 656 (N.Y. Sup. Ct. 2010). By creating a Facebook account, a user
acknowledges that her personal information would be shared with others.
Id. at 657. “Indeed, that is the very nature and purpose of these social
networking sites else they would cease to exist.” Id.
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. Beswick v. N.W.
Med. Ctr., Inc., No. 07-020592 CACE(03), 2011 WL 7005038 (Fla. 17th Cir.
Ct. Nov. 3, 2011). As one federal judge has observed,
Even had plaintiff used privacy settings that allowed only her
“friends” on Facebook to see postings, she “had no justifiable
expectation that h[er] ‘friends’ would keep h[er] profile private.
. . . ” U.S. v. Meregildo, 2012 WL 3264501, at *2 (S.D.N.Y.
2012). In fact, “the wider h[er] circle of ‘friends,’ the more
likely [her] posts would be viewed by someone [s]he never
expected to see them.” Id. Thus, as the Second Circuit has
recognized, legitimate expectations of privacy may be lower in
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e-mails or other Internet transmissions. U.S. v. Lifshitz, 369
F.3d 173, 190 (2d Cir. 2004) (contrasting privacy expectation
of e-mail with greater expectation of privacy of materials
located on a person’s computer).
Reid v. Ingerman Smith LLP, No. CV2012-0307(ILG)(MDG), 2012 WL
6720752, at *2 (E.D.N.Y. Dec. 27, 2012); see also Tompkins v. Detroit
Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (holding that
“material posted on a ‘private’ Facebook page, that is accessible to a
selected group of recipients but not available for viewing by the general
public, is generally not privileged, nor is it protected by common law or
civil law notions of privacy”); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D.
566, 570 (C.D. Cal. 2012) (indicating that social networking site content is
neither privileged nor protected, but recognizing that party requesting
discovery must make a threshold showing that such discovery is
reasonably calculated to lead to admissible evidence).
We distinguish this case from Root v. Balfour Beatty Construction, LLC,
132 So. 3d 867 (Fla. 2d DCA 2014). That case involved a claim filed by a
mother on behalf of her three-year-old son who was struck by a vehicle.
Unlike this case, where the trial court ordered the production of
photographs from the plaintiff’s Facebook account, the court in Balfour
ordered the production of a much broader swath of Facebook material
without any temporal limitation—postings, statuses, photos, “likes,” or
videos—that relate to the mother’s relationships with all of her children,
not just the three year old, and with “other family members, boyfriends,
husbands, and/or significant others, both prior to, and following the
accident.” Id. at 869. The second district determined that “social media
evidence is discoverable,” but held that the ordered discovery was
“overbroad” and compelled “the production of personal information . . . not
relevant to” the mother’s claims. Id. at 868, 870. The court found that
this was the type of “carte blanche” irrelevant discovery the Florida
Supreme Court has sought to guard against. Id. at 870; Langston, 655 So.
2d at 95 (“[W]e do not believe that a litigant is entitled carte blanche to
irrelevant discovery.”) The discovery ordered in this case is narrower in
scope and, as set forth above, is calculated to lead to evidence that is
admissible in court.
Finally, we reject the claim that the Stored Communications Act, 18
U.S.C. §§ 2701-2712, has any application to this case. Generally, the “SCA
prevents ‘providers’ of communication services from divulging private
communications to certain entities and/or individuals.” Quon v. Arch
Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev’d on
other grounds by City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010) (citation
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omitted). The act does not apply to individuals who use the
communications services provided. See, e.g., Flagg v. City of Detroit, 252
F.R.D. 346, 349 (E.D. Mich. 2008) (ruling that the SCA does not preclude
civil discovery of a party’s electronically stored communications which
remain within the party’s control even if they are maintained by a non-
party service provider).
Finding no departure from the essential requirements of law, we deny
the petition for certiorari.
STEVENSON and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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