How Surveillance Helped Unlock Private Social Media Content

Did you recently learn that your claimant has a Facebook page, or some other social media presence, but when you went to review the information - you learned the page was set to PRIVATE?  It can be discouraging to know that your claimant’s private social media page could provide great insight into their current abilities, but you can’t view it… or can you?

The recent court case of Maria F. Leon Nucci v. Target Corporation, 162 So. 3d 146 (2015) may have changed the access you have to your claimant’s private photos. The Judge ordered that Target’s defense team could view private images on her Facebook profile. Why? Because Target’s defense gathered vital information during their surveillance investigation that brought into question the validity of her claim.

Video footage of a claimant conducting physical tasks, working off the books, or violating their doctor’s orders can often times be your best line of defense when negotiating settlements. In this particular case, the footage not only assisted in the defense of the claim, but it also opened the door to much more information.

What this Means for Your Claims:

Surveillance and social media investigations go hand in hand. Nowadays, the idea of investigators scheduling surveillance without first applying the knowledge gained from Social Media Outlets is foolish.  For instance, knowing that a claimant with a shoulder injury discusses her weekly bowling schedule on her Facebook page can be of great assistance when deciding when and how to schedule surveillance.  As a result, we often look at social media investigations as a necessary precursor to scheduling strategic, targeted surveillance.

Now, however, due to this Court ruling, just as social media findings can assist in surveillance efforts, the same can be applied in reverse. In other words, it is possible for surveillance findings to help us gather more information about one’s social media presence!

"What legal grounds did Target have that could cause for this drastic change in social media privacy rights?"

"How did Target’s defense team illustrate that they weren’t going on a “fishing expedition?”

The Case that Changed the Game:

In this personal injury case, Maria Nucci alleged that she slipped and fell on a foreign substance at a Target store. She alleged that she sustained serious bodily injury, emotional pain and suffering, lost earnings, and suffered mental and physical ability to enjoy her life.  During discovery, Target’s Counsel obtained information regarding the plaintiff’s social media presence on Facebook. Upon reviewing the Facebook page over time, defense counsel learned that less information was available for the public to view on the webpage, indicating certain photographs were set to private. As a result, Target’s Counsel moved to compel inspection of Nucci’s private Facebook profile and argued that they were entitled to view all photographs. Nucci’s legal team responded, and said that the plaintiff’s Facebook page was set to private; therefore, she had a reasonable expectation of privacy. Nucci’s defense argued that Target’s motion was “an overbroad fishing expedition.”

However, to strengthen the grounds of their request, Target brought to light another element of their investigation...surveillance footage!  At the hearing, Target presented surveillance video that illustrated Nucci carrying bags and jugs of water. Target argued that this surveillance footage indicated that there was an inconsistency in Nucci’s claim; therefore, the relevancy of the private Facebook photographs outweighed the plaintiff’s right to privacy.

Ultimately, the Florida 4th DCA, sided with Target, saying, “The relevance of the [Facebook] photographs is enhanced, because the post-accident surveillance videos of Nucci [showing her carrying bags and jugs of water], 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 Court determined that “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 Hemmingway, 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...”​​

In regards to the privacy settings for Facebook, the court stated that “By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist,” (Romano v. Steelcase, Inc., 907N.Y.S.2d 650, 656 (N.Y. Sup. Ct. 2010 Id. at 657). Facebook itself does not guarantee privacy. As one judge noted, “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).

One last citing the Court made, which we believe speaks to the importance of the surveillance footage, was Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012). The Court said that, “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.” In this case, the surveillance footage helped meet that threshold.

In summary, don’t concede and retreat on a suspicious claim because a claimant has set their social media accounts to private.  Surveillance video that shows exaggeration of an injury claim may also serve as the grounds for the Court to compel the claimant to reveal their private social media photographs. I hope this piece has illustrated the importance of understanding how surveillance can complement social media findings, just as well as social media findings can complement surveillance.  Happy hunting!

*DISCLAIMER* This newsletter is offered only for educational purposes. The material provided is for informational purposes only and does not constitute legal advice. This newsletter is not offered as, nor does it constitute, legal advice or legal opinions. You should not act or rely on any information contained in this newsletter without first seeking the advice of an attorney.