Nucci v. Target Corp.

• Citation: 162 So.3d 146
• Decision Date: 07 January 2015
• Docket Number: No. 4D14–138.,4D14–138.
• Parties: Maria F. Leon NUCCI and Henry Leon, her husband, Petitioners, v. TARGET CORPORATION, American Cleaning Contracting, Inc., and First Choice Building Maintenance, Inc., Respondents.
• Court: Court of Appeal of Florida (US)

162 So.3d 146

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.

District Court of Appeal of Florida, Fourth District.

Jan. 7, 2015.

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.

Opinion

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.

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 (8) 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.

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 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...