A monumental case in January of last year, titled Nucci v. Target Corp., set a precedence on social media in discovery.  This case highlighted the idea that the fact finder has a right to inspect activities before and after an incident.  This included content that may be marked as “private” on a person’s social media profile.

In personal injury cases, when the plaintiff alleges “pain and suffering” or “emotional distress,” comments and photos on social media could disprove the alleged harms.  This therefore makes those posts potentially relevant.  In this particular case, Maria Nucci claimed that she suffered personal injuries and emotional distress from a slip-and-fall accident at a Target store.  Target sought to access her photos on Facebook but the account was set to “private.”  Suspicious heightened when the number of photographs depicted on Nucci’s social media page shrunk after her deposition, and post-accident surveillance videos showed her carrying heavy items.  The trial court ordered Ms. Nucci to hand over photographs of herself from two years prior to the incident to the present.

As Ms. Nucci unsuccessfully appealed the decision, we are left with the precedence by the appellate court which indicated that photographs are an especially important class of materials to litigation.  As photographs have the potential to be “worth a thousand words,” there is no better portrayal of what an individual’s life was like than the photos the individual chose to share through social media before the occurrence of an accident causing injury, and thus, prior to the existence of any motive to manipulate reality.

Keep in mind that these requests must still be balanced with the person’s right to privacy.  A complete request to download the opponent’s entire social media content in a “fishing expedition” (where relevant evidence might be incidentally caught in an all-inclusive discovery request) can not be made.  However, the courts are saying that if it can be demonstrated that there is relevant public content, then the court can compel the individual to hand over the rest.

In this particular case, the photographs sought were powerfully relevant to the damage issues in the lawsuit.  The relevance was demonstrated by the post-accident surveillance of Ms. Nucci which suggested that her injury claims were suspect and that she may not have been accurately reporting her pre-accident life and the quality of her life since then.

As photographs have the potential to be “worth a thousand words,” the court’s ruling suggests that photographs should typically be more freely discoverable in future personal injury lawsuits than other types of social media content.

More information on the case can be found at: https://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-blogs/archive/2015/01/14/lawsuits-discovery-and-the-right-to-privacy-in-the-context-of-social-media.aspx