Give me everything you’ve posted about your family on Facebook

People’s Facebook accounts can provide evidence that’s relevant to lawsuits in which they are involved, and courts will often let the other side discover items from such accounts. But there are limits, as Wednesday’s Florida Court of Appeal decision in Root v. Balfour Beatty Construction LLC (Fla. Ct. App. Feb. 5, 2014) shows:

The underlying action is a negligence action filed by [Tonia Root on behalf of Gage Root] against the City of Cape Coral, a construction contractor, and subcontractors (Defendants) for damages Root’s three-year-old son Gage suffered when he was struck by an oncoming vehicle in front of a construction site. The accident occurred while Gage was under the care of his seventeen-year-old aunt. Root alleged that Defendants were negligent for failing to use reasonable care in keeping the construction site safe for pedestrians. Root also raised derivative claims for loss of parental consortium [defined later as “the loss of companionship, society, love, affection, and solace of the injured child, as well as ordinary day-to-day services that the child would have rendered”]. Defendants raised affirmative defenses including negligent entrustment of Gage by Root, the aunt’s failure to supervise, and the driver’s negligence.

The discovery order at issue requires Root to produce copies of postings on her Facebook account which include the following:

(i.) Any counseling or psychological care obtained by Tonia Root before or after the accident; ….

(o.) Any and all postings, statuses, photos, “likes” or videos related to Tonia Root’s

i. Relationships with Gage or her other children, both prior to, and following, the accident;

ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;

iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident; ….

v. Facebook account postings relating to any lawsuit filed after the accident by Tonia Root or others[.]

… [T]rial courts around the country have repeatedly determined that social media evidence is discoverable…. [D]iscovery of information on social networking sites simply requires applying “basic discovery principles in a novel context.”

Under the basic principles for evaluating discovery in Florida, the party seeking discovery must establish that it is (1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court…. Defendants have not met this burden as to the requested discovery.

Root’s complaint contains claims on behalf of Gage for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of Gage by Root, the aunt’s failure to supervise, and the driver’s negligence. As to Gage’s claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses….

The requested discovery also appears at this time to be irrelevant to Root’s claims for loss of consortium. Although Root’s deposition has been taken, Defendants do not point to anything claimed by her in support of their contention that the requested information is relevant and discoverable. Generally, any such discovery should have been limited to that related to the impact of Gage’s injury upon Root.

Moreover, the scope of the discovery compelled in categories (i) and (o)(i, ii, iii, v) regarding Root’s relationships with her entire family and significant others, her mental health history, her substance use history, and her litigation history appears to be the type of carte blanche discovery the [Florida] supreme court [has] sought to guard against ….

Significantly, one defendant’s argument to the magistrate who heard the discovery issues supports Root’s contention that the requested discovery constitutes a fishing expedition. The defendant’s attorney stated, “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Even the magistrate acknowledged that relevancy might be a problem, noting that “95 percent, or 99 percent of this may not be relevant.” The magistrate also expressed some misgivings at the possibility that large amounts of material might have to be reviewed in camera.

In summary, based on the current posture of the case we conclude that the portion of the order permitting the discovery of categories (i) and (o)(i, ii, iii, v) must be quashed. Should further developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery….

Sounds quite right to me. Thanks to Jim Dedman (Abnormal Use) for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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Sasha Volokh · February 6, 2014