A Publication of the florida defense lawyers association

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1 Volume 31 Number 2 SPRING 2012 INSIDE: Defending the Non- Resident Car Owner Discovery of Facebook Content Drafting Noncompete Agreements Education. Information. Professionalism. Expert Witness Certificates A Publication of the florida defense lawyers association

2 IN THIS ISSUE FDLA s two largest events of the year are coming up: the 16th annual Liability Claims Conference in June, and the Annual Meeting in August. The Liability Claims Conference brochure is available on the FDLA website, under Events. The Annual Meeting brochure will be available soon. We hope you will be able to join us at one (or both) of these informative and fun conferences. President s Message...1 By L. Johnson Sarber, III Executive Director s Message...2._ By Linda L. Jude Editorial Your Editorial Board...3 By Barbara Busharis Recent Legal Developments...5._ By Esther E. Galicia Expert Witness Certificates: Creating Accountability for Out-of-State Witnesses in Florida Courts...11 By Doug Jones and Matthew Scanlan Discovery of Facebook Content in Florida Cases...14._ By Christopher B. Hopkins and Tracy T. Segal Winter 2012 Conference...17 Defending the Non-Resident Car Owner...21._ By Bruce A. Hanna and Katherine Hurst Miller Drafting and Enforcing Covenants Not to Compete...29._ By Jason C. Taylor New Members FDLA Application for Membership...36 FLORIDA DEFENSE LAWYERS ASSOCIATION THE TRIAL ADVOCATE QUARTERLY PRESIDENT L. Johnson Sarber, III PRESIDENT-ELECT Jeffrey C. Bigman SECRETARY-TREASURER Daniel J. Santaniello IMMEDIATE PAST PRESIDENT Joseph E. Brooks EXECUTIVE DIRECTOR Linda L. Jude DIRECTORS Michael D. McCoy Dale J. Paleschic Jeffrey M. Adams Andrew S. Bolin Douglas J. Chumbley Sally H. Seltzer Christopher B. Hopkins Jeffrey W. Johnson J. Charles Ingram Robert E. Bonner Melissa E. Morgan EDITORIAL BOARD MEMBERS Traci T. McKee, Chair Kelly Bittick Joseph E. Brooks Edward J. Carbone Esther Galicia Betsy Gallagher Christopher B. Hopkins Miguel R. Roura Robert Weill EDITOR Barbara J. Busharis The Trial Advocate Quarterly is published four times a year by FDLA. Subscriptions are part of the membership benefits. Others wishing subscriptions should contact the Florida Defense Lawyers Association. The opinions and materials contained in the Trial Advocate Quarterly are those of the authors and do not necessarily reflect the policy or opinions of the Florida Defense Lawyers Association or of the Editorial Board and staff of the Trial Advocate Quarterly. No guarantee is made as to the accuracy of the articles; attorneys are cautioned that our materials must be cross-checked and updated, as must all legal materials. Submit articles or query letters to: Barbara Busharis, TAQ Editor, in care of the Florida Defense Lawyers Association, P.O. Box , Tampa, Florida All materials in this publication are copyrighted by The Florida Defense Lawyers Association, April All rights protected.

3 PRESIDENT S MESSAGE By L. Johnson Sarber, III Laughter and the Long Jump My twelve-year-old son Johnson recently reminded me of an important lesson. His middle school track team was at a high school meet and, despite being a great athlete, he was getting crushed in every heat running against older and bigger kids. Crushed, as in not even close, as in the announcer stating please stay off the track, there are still runners coming in. In the long jump, his first jump was several feet shorter than his opponents, and I could tell he was getting very frustrated, even asking me what the point was of competing in this meet. I tried to encourage him and reminded him of everything I know about proper long jump technique, which only took about four seconds and I made up half of it. While waiting for his second jump, we struck up a conversation with one of his competitors, a nice boy who claimed that he was seventh in the nation in his age group in this event. At that, Johnson looked at me, rolled his eyes, and his already demoralized spirit sank even lower. Just when it couldn t get worse, he was disqualified when he stepped over the jump line on both his second and third attempts. He walked back to the starting line where I was waiting for him, head hanging, and as he approached I could see his eyes were reddening and welling up. When he got to me he buried his head on my chest and began to sob. I ve been there. Gotten pounded on occasion, wanted to hide from the world, blame someone else, throw a pity party, yell at somebody, or even quit. Some championship soccer games from the days of my youth come to mind, as do a couple of court rulings and jury trial verdicts more recently. But as I was about to teach this little life lesson to my son, he taught me one. He started to laugh. A healthy, mature, rejuvenating laugh, even as the tears rolled. Seventh in the nation!? What am I supposed to do with that? he managed through the now uncontrollable laughter. Arm in arm we walked to his last running event, and a smile returned to his face. When things go wrong, sometimes laughter is indeed the best medicine. I wouldn t necessarily recommend it in front of the client, of course, but when it s just us and the door is closed, we have a choice of how we react to adverse situations. Laughter doesn t mean we don t care, or that we won t commit totally to learning and improving from our mistakes. It just means that we have the right perspective about things we can t control and the maturity to choose something other than an overreaction that can hurt those we live and work with. By the way, in his final race that night, my boy didn t finish last. We celebrated all the way home, and we still laugh about the long jump

4 EXECUTIVE DIRECTOR S MESSAGE By Linda L. Jude Over the years, you ve heard many, many pleas to become involved in FDLA. Why do we keep urging your involvement? Maybe because we hope that by repeating this plea over and over it will happen? Actually, it s because FDLA cannot survive and function without members becoming involved participating actively. FDLA is fortunate to have members who actively contribute their time, abilities and efforts to FDLA to the TAQ, to committees, to the seminars, to serving on the Board. FDLA offers all its members the same opportunities to become part of FDLA s continued success. FDLA is and can only be successful because of its members and their involvement in Association activities/programs. You are all busy you have other commitments anything you do for FDLA is as a volunteer. Before you stop reading right here, let me say that you do not have to make a huge time commitment. Some suggestions: TAQ Article have you researched an issue or written a memorandum of law? Have you filed an Amicus brief? All of these can be turned into an article for publication. defense POST Article for many years, Tom Dukes, a past FDLA president, has authored the Two Minute Primer in the defense POST. Many of you also have tips/hints to pass on to new and not so new attorneys. Why not write a column? Committees FDLA has committees in several areas of substantive law. Join one. Committees are the lifeline of FDLA. They help us develop FDLA leaders; help committee members achieve prominence in their area of specialization; and help all members learn and share a collegial experience. Seminars FDLA is always on the lookout for speakers and topics for its defenseoriented seminars. Suggest a topic or offer to speak. Expert Witness post experts on the FDLA website. Of course, there are other ways to help FDLA let us know your ideas. Hearing from members is a pleasure. Each of you is encouraged to promote membership in FDLA in your firms. Remind your partners and associates of FDLA s membership benefits. Not only does FDLA membership provide education along with many other benefits, but the networking opportunities are priceless. If you don t know the FDLA members in your firm, please contact me For the first time early this spring, FDLA conducted three simultaneous and successful Young Lawyer Boot Camps in Jacksonville, the Orlando area and Ft. Lauderdale. Thanks to those who coordinated the seminars and to the speakers. As we approach the summer and vacations and other activities involving families and friends, do not forget the upcoming events which are important for FDLA. The 16 th Annual Florida Liability Claims Conference (June 6-10, 2012 at Disney s Contemporary Resort) and the 2012 FDLA Annual Meeting (August 9-12, 2012 at the Ritz-Carlton on Amelia Island) are two of the association s major events. Be sure to have these dates on your calendars

5 EDITORIAL Your Editorial Board By Barbara Busharis Without contributions from the membership, there could be no Trial Advocate Quarterly. Just as important, without the leadership and expertise of the editorial board, we could not maintain the quality that you have come to expect from the journal. These are the people whose labors bring you the Trial Advocate Quarterly four times a year. You will probably recognize their names from bylines on previous articles. In addition to their own writing, however, these board members review manuscripts, develop topics, and network with FDLA members to bring you articles you can use. There s no question that we have a highly accomplished group at work on the TAQ. They include a former high school band director, a former spelling bee champion (who missed his shot at national glory by misspelling codicil, thus propelling him into a lifetime of legal study), and at least one triathlete. We could not possibly list all of their legal accomplishments and affiliations in just a few paragraphs. The next time you see one of these folks at a conference or seminar, say hello. Better yet, ask them about working on an issue of the TAQ. You won t regret it. Traci T. McKee (Henderson, Franklin, Starnes & Holt, P.A., Fort Myers) is one of the newest additions to the board, having taken on the role of editorial board chair in It was no surprise to anyone in FDLA that Traci was recognized as a Rising Star in civil litigation by Florida Super Lawyers magazine in 2010 and Traci represents clients at trial and on appeal, primarily in the area of legal malpractice, and also defends school boards. She was the valedictorian of her class at Stetson University College of Law in Her defense skills were honed on the volleyball court; she played volleyball at the University of North Florida for four years, and was captain of the team her senior year. She is the mom of two sweet and energetic boys, ages 2 years and 6 months. Her own energy and organizational skills are legendary, or should be. Kelly Bittick (Carlton Fields, Tampa) represents clients in matters involving business disputes, insurance, construction, and products liability cases, at both the trial and appellate level. He has been married to his high school sweetheart for almost 30 years and is the father of two sons in college. As one would expect of a former classics major, Kelly is a devoted reader, particularly of Thoreau. He will be making his third pilgrimage to Walden Pond this summer. In his spare time he watches Psych re-runs and tries to see almost every movie released. Joseph Brooks (Masterson & Brooks, Tallahassee) represents clients primarily in the areas of medical malpractice, insurer bad faith, and insurance coverage. Joe has been President of the FDLA and chair of the editorial board. He co-authored the TAQ s first Trial Essentials feature, an exhaustive survey of cases that can be useful during voir dire, which has been updated several times. Before going to law school he played trumpet in the Florida Gulf Coast Symphony and served as a helicopter pilot in the Army. Edward Carbone (Carlton Fields, Tampa) has a practice concentrated on health care providers, primarily on appeal, and in the area of risk management. He also has expertise in birth injury claims, including those involving birthrelated neurological injuries, and medical ethics. In addition to being an excellent speller, Ed has played the popular Florida sport of ice hockey since he was eight. When he is not on the ice himself he is willing the Boston College hockey team to yet another national championship

6 Esther Galicia (Fowler White Burnett) practices appellate law and litigation/trial support. She has written the Recent Developments column since 1997, making her by far the most frequent TAQ contributor, and is a charter member of the Appellate Practice section of The Florida Bar, among many other memberships. An avid fan of the University of Miami s football team and the Florida/Miami Marlins, Esther also collects Romero Britto artwork. Betsy Gallagher (Kubicki Draper, Tampa) concentrates on state and federal appeals and insurance coverage litigation. Extremely active in state and local bar associations, and a past chair of Outreach for the Appellate Practice Section of The Florida Bar, she also proudly serves on the board of trustees of the University of Florida Levin College of Law. Betsy, a twin, was a Father s Day surprise; she and her sister joined 16-month and 3-year-old siblings. Her undergraduate degree, from Cornell University, is in Floriculture and Ornamental Floriculture. Christopher Hopkins (Akerman Senterfitt, West Palm Beach) has a general litigation practice including medical and nursing home litigation, construction, professional malpractice, and probate. Before going to law school, he obtained a master s degree from Wesley Theological Seminary. He is our go-to source for law and technology issues and has written numerous columns for the TAQ and other publications, in addition to developing two iphone apps for Florida lawyers (more information is available at He also brews his own sake, which he says is easier than brewing beer. Miguel Roura (Banker Lopez Gassler) is the newest addition to the editorial board. After graduating from Stetson University College of Law in 2008, he spent two years honing his trial skills as an Assistant State Attorney in the Sixth Judicial Circuit. His practice is in the area of insurance defense, with an emphasis on personal injury defense and PIP litigation. Miguel finished the 2011 Ironman Florida, which required him to swim 2.4 miles in Panama City in November. Robert Weill (Sedgwick LLP, Ft. Lauderdale) practices primarily appellate law, including litigation support; his areas of expertise include insurance coverage, bad faith law, and complex motion practice. He is a member of the Appellate Practice Section of The Florida Bar, and a frequent contributor to the TAQ. Rob is the second surprise twin on the editorial board, having arrived with a fraternal twin brother and little warning. Rob s gift for good timing came in handy when he was hired to clerk for then-judge Harry Anstead immediately before Justice Anstead s elevation to the Florida Supreme Court. When not drafting briefs or petitions, he is a confessed crossword puzzle and movie addict. These folks and many who have come before them are unsung heroes who do not always get the thanks they deserve! From a grateful editor, thank you

7 Recent Legal Developments By Esther E. Galicia SUPREME COURT DECISIONS 1. Does an insured who rents a vehicle and allows the vehicle to be operated by an unauthorized driver under the rental agreement lose the coverage provided by her automobile insurance policy for temporary-substitute vehicles? The Florida Supreme Court in Chandler v. Geico Indemnity Co., 78 So. 3d 1293 (Fla. 2011), reh g denied (Fla. Jan. 23, 2012), held that an insurer has a duty to defend and indemnify the insured in a negligence action against the insured where the insured rented a vehicle after her insured vehicle became disabled even though the rental agreement stated that no additional operators were authorized or permitted. The fact that the insured permitted the rental vehicle to be used by an unauthorized operator who, in turn, allowed the vehicle to be operated by another unauthorized operator who operated the vehicle in a negligent manner did not vitiate consent under Florida s dangerous instrumentality doctrine for purposes of defeating insurance coverage. An owner s consent to use a vehicle is not vitiated by third party agreements attempting to limit the scope of who may operate the vehicle. 2. When is an arbitration agreement against public policy? Who may decide the enforceability of an arbitration agreement which violates public policy? In Shotts v. OP Winter Haven, Inc., 36 Fla. Law Weekly S665 (Fla. Nov. 23, 2011), the Supreme Court ruled that the trial court, not an arbitrator, must determine the issue of whether an arbitration agreement is unenforceable on public policy grounds. Substantively, the limitations of remedies provisions in the arbitration section of the nursing home resident agreement violated public policy to the extent that the arbitrators did not, for example, have authority to award punitive damages, and the remedies provisions otherwise undermined specific statutory remedies created by the Legislature. In this regard, an arbitration agreement which substantially diminishes or circumvents legislatively created remedies stands in violation of Florida s public policy and is unenforceable. The district court further erred in ruling that the limitations of remedies provision calling for the imposition of the American Health Lawyers Association ( AHLA ) rules was severable. Although the arbitration agreement contained a severability clause, the AHLA provision went to the very essence of the agreement and, if the provision were severed, the trial court would be forced to rewrite the agreement to add an entirely new set of procedural rules, burdens and standards. Finally, since the arbitration agreement did not contain a delegation provision, in which the parties specifically agreed to arbitrate the enforceability of the agreement, the U.S. Supreme Court s recent decision in Rent-A-Car West, Inc. v. Jackson, did not apply and thus the trial court, not an arbitrator, needed to decide the issue. 3. Are limitation of liability provisions in an arbitration agreement severable? Who should decide whether an arbitration agreement violates public policy? The Supreme Court in Gessa v. Manor Care of Florida, Inc., 36 Fla. Law Weekly S676 (Fla. Nov. 23, 2011), concluded that the district court erred in ruling that the limitation of liability provisions in the arbitration clause, which place a $250,000 cap on noneconomic damages and waived punitive damages, were severable. Furthermore, those limitations violate public policy. The Supreme Court accordingly held that the district court erred in affirming the trial court s order which, in effect, allowed the arbitrator, not the court, ABOUT THE AUTHOR ESTHER E. GALICIA is a shareholder with Fowler White Burnett P.A. in Miami. Ms. Galicia specializes in civil litigation support and civil appeals at all levels. She is a member of The Florida Bar and is licensed to practice before the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the United States District Court for the Southern and Middle Districts of Florida. She is also a member of the Appellate Practice and Advocacy Section and Civil Appellate Practice Committee of The Florida Bar, the Dade and Broward County Bar Associations, the Defense Research Institute, and the FDLA. A long-time member of the Trial Advocate Quarterly Editorial Board, Ms. Galicia is a member of the Cuban American Bar Association and the Broward County Hispanic Bar Association. Ms. Galicia is AV-rated by Martindale-Hubbell

8 to decide whether the arbitration agreement violated public policy. 4. Is the Supreme Court required to dismiss an appeal involving a certified question when the parties stipulated to dismissal? In Pino v. The Bank of New York, 76 So. 3d 927 (Fla. 2011), the Florida Supreme Court stated that Rule of Appellate Procedure does not require the Supreme Court to dismiss a case after the court has accepted jurisdiction based on a question certified to be one of great public importance and the petitioner has filed its initial brief on the merits. Dismissal is not required even if the parties filed a joint stipulated dismissal advising that they had settled the matter and agreed to dismissal of the review proceedings. 5. Is a blank application for medical staff privileges confidential or discoverable? The Florida Supreme Court in West Florida Regional Medical Center, Inc. v. See, 37 Fla. Law Weekly S22 (Fla. Jan. 12, 2012), concluded that a blank application for medical staff privileges does not fall within the scope of the confidentiality provisions provided by sections (5) and (8), Florida Statutes (2006). The court further concluded that Amendment 7 mandates disclosure of the blank application because, in plaintiff s action for negligent grant of medical staff privileges, the blank application is a record of an adverse medical incident. The blank application, upon which information was placed to generate the record of the medical staff application process and procedure, led to the alleged negligent grant of medical staff privileges, which led to the inflicted injury on plaintiff. The court also found that section (7)(b)1, Florida Statutes (2006), impermissibly attempts to limit the disclosure requirements of Amendment 7 and Amendment 7 is not preempted by the federal Health Care Quality Improvement Act. 6. Does a farm tractor constitute a dangerous instrumentality? The Supreme Court in Rippy v. Shepard, 37 Fla. Law Weekly S31 (Fla. Jan. 19, 2012), held that a farm tractor is peculiarly dangerous in its operation so as to classify it as a dangerous instrumentality and justify the imposition of vicarious liability. 7. What type of presumption is created by section (1)(c) with regard to engineering opinions concerning a sink-hole loss? Florida s Supreme Court in Universal Insurance Co. of North America v. Warfel, 37 Fla. Law Weekly S50 (Fla. Jan. 26, 2012), interpreted the presumption created by section (1)(c), Florida Statutes (2005), which provides that the findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair are presumed correct. The court found that the statutorilycreated presumption is a vanishing or bursting bubble presumption governed by section of Florida s Evidence Code, rather than a presumption affecting the burden of proof under section of the Evidence Code. The trial court accordingly erred in instructing the jury that the presumption shifted the burden of proof to the insured in the insured s action to recover for losses allegedly caused by a sinkhole. FIRST DISTRICT DECISIONS 8. May section attorney s fees be imposed as a sanction for not having standing to file an appeal? In Martin County Conservation Alliance v. Martin County, Department of Community Affairs, 73 So. 3d 856 (Fla. 1st DCA 2011), the First District found that an award of appellate attorney s fees pursuant to section was appropriate where an administrative appeal was filed without citing material facts to support standing or then existing law to support the appeal based on material facts found below. The language of section evidences a legislative intent to impose a mandatory penalty for bringing or failing to dismiss baseless claims or defenses. 9. When is a provision permitting the sharing of confidential information improper? The First District in Wal-Mart Stores East, L.P. v. Endicott, 36 Fla. Law Weekly D2707 (Fla. 1st DCA Dec. 9, 2011), held that the sharing provision in a protective order which authorized disclosure of confidential information to any attorneys, their staff, or expert witnesses in any other cases involving the issues of the underlying case amounted to a departure from the essential requirements of law. The sharing provision was unwarranted because the potential collateral litigants were unknown, the only affirmation as to their need to view the confidential information were assertions of plaintiff s counsel, and the trial court simply could not engage in the required balancing test when there were no established potential litigants. 10. Under what circumstances are fees authorized pursuant to section (2)? The district court in Staples v. Duerr, 76 So. 3d - 6 -

9 1114 (Fla. 1st DCA 2011), found that the trial court properly awarded attorney s fees under section (2) against plaintiff s attorney in a medical malpractice action for the pre-suit costs incurred by the defense in investigating and evaluating the malpractice claim. However, the court erred in awarding attorney s fees for post-suit costs spent litigating entitlement to fees. Section (2) only authorizes pre-suit expenses incurred while investigating and evaluating a claim, not post-suit expenses incurred litigating entitlement to fees. 11. May an expert testify concerning the results of a government study which are consistent with the expert s opinions? In Duss v. Garcia, 37 Fla. Law Weekly D106 (Fla. 1st DCA Jan. 6, 2012), the First District held that it is not improper bolstering to allow an expert to testify about the results of a government study such as one conducted by the National Institutes of Health. 12. When is it proper for a physician not to Baker Act a suicidal psychiatric patient? The First District in Tuten v. Fariborzian, 37 Fla. Law Weekly D144 (Fla. 1st DCA Jan. 13, 2012), found no error in the trial court s dismissal of a wrongful death action where the physician did not Baker Act the deceased, who was admitted to a psychiatric facility after he attempted suicide and subsequently shot his wife and fatally shot himself when released from the facility. In the physician s professional opinion, the deceased was competent enough to give or withhold consent for treatment and thus involuntary placement would have been inconsistent with the plain requirements of the Baker Act. The district court also rejected the plaintiff s argument that the physician and psychiatric facility had a common law duty to keep the deceased committed against his will because the future behavior of a psychiatric patient is unpredictable, the risk of harm is not foreseeable and consequently no duty exists to lessen the risk or protect others from the type of risk a psychiatric patient may pose. SECOND DISTRICT DECISIONS 13. When is an arbitration agreement not procedurally unconscionable and therefore enforceable? The Second District in Tampa HCP, LLC v. Bachor, 72 So. 3d 323 (Fla. 2d DCA 2011), held that the trial court erred in denying a nursing home s motion to compel arbitration on the basis that the arbitration agreement was unconscionable. The evidence failed to show procedural unconscionability where the representative of the nursing home patient was not told she was required to sign the arbitration agreement to have her mother admitted; the representative was not rushed to sign; and the agreement clearly stated that the representative could review the agreement with a lawyer, that signing was not a precondition to admission and there was a period during which the representative could rescind the agreement after signing it. Given the absence of procedural unconscionability, the reviewing court did not need to address the representative s substantive unconscionability argument. 14. Must each instance of attorney misconduct be objected to when seeking a new trial based on the cumulative effect of counsel s repeated misconduct? In City of Tampa v. Companioni, 74 So. 3d 585 (Fla. 2d DCA 2011), the Second District stated that a party seeking a new trial based on the cumulative misconduct of opposing counsel must object to each instance of misconduct and move for a mistrial in order to preserve the issue for purposes of a motion for a new trial. Absent such preservation, the alleged misconduct is subject to the stringent fundamental error analysis. THIRD DISTRICT DECISIONS 15. Should a party be required to produce a surveillance video before deposing the subject of the video? In State Farm Mutual Automobile Insurance Co. v. H. Rehab, Inc., 77 So. 3d 724 (Fla. 3d DCA 2011), the Third District held that the circuit court, sitting in its appellate capacity, violated clearly established law by affirming the trial court s order granting a motion to compel production of a surveillance video before permitting the opposing party to take the deposition of the person who was videotaped. 16. May final judgments be vacated and re-entered to permit the filing of a motion for rehearing and provide sufficient time for assessing the viability of an appeal? The Third District in United Funding, LLC v. Brandao, 77 So. 3d 710 (Fla. 3d DCA 2011), concluded that the trial court abused its discretion when it refused to vacate and re-enter final judgments that were not received until well after the time to move for rehearing had passed and only three days remained to file an appeal. Actual notice that the judgments were being entered did not cure the lack of timely formal notice

10 17. Is evidence that an automobile insurer paid PIP benefits admissible in the insured s action for UM benefits? The district court in State Farm Mutual Automobile Insurance Co. v. Swindoll, 36 Fla. Law Weekly D2718 (Fla. 3d DCA Dec. 14, 2011), held that the trial court erred in allowing the UM insured both to present evidence that the insurer paid the insured PIP benefits and to make the benefits a feature of the trial. The insurer refused to pay UM benefits on the ground that the medical treatment for which the insured sought payment did not stem from injuries incurred in the automobile accident. The erroneously admitted evidence was clearly intended to convince the jury that the insurer s payment of PIP benefits constituted an admission that the insured was entitled to recover UM benefits because the insurer had already determined that services for which payment was sought were reasonable, necessary, and related to the automobile accident. The law is, however, well established that evidence of an insurer s payment of PIP benefits is not relevant or admissible to prove the propriety of claimed medical damages in a UM action. FOURTH DISTRICT DECISIONS 18. When is the plaintiff s failure to file the corroborating affidavit of a medical expert excused in a medical malpractice action? The Fourth District in Houston v. Geo, 73 So. 3d 323 (Fla. 4th DCA 2011), found that the trial court erred in dismissing, on its own, a prison inmate s amended complaint alleging medical negligence where the inmate s failure to provide a corroborating medical expert opinion was excused by the fact that the defendants did not provide plaintiff the medical records he requested within 10-days of plaintiff s request. On remand, the trial court was ordered to conduct an evidentiary hearing in order to make findings of fact regarding the issue of whether, under the circumstances, the corroborating medical expert affidavit was in fact waived by defendants failure to timely provide the requested medical records. 19. What facts warrant an intervening cause jury instruction? In Tucker v. Korpita, 77 So. 3d 716 (Fla. 4th DCA 2011), the Fourth District held that the trial court erred in failing to give the requested jury instruction on intervening cause. Defendant s expert s testimony revealed that the treatment provided to plaintiff following the automobile accident was inappropriate and could have accelerated plaintiff s degenerative lumbar spine process. 20. How is harmless error established? The district court in Special v. Baux, 36 Fla. Law Weekly D2503 (Fla. 4th DCA Nov. 16, 2011), receded from its prior but for harmless error test and adopted the following standard for harmless error in civil cases: To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict. 21. Under what circumstances is a non-party treating physician subject to financial information discovery? The Fourth District in Katzman v. Rediron Fabrication, Inc., 73 So. 3d 1060 (Fla. 4th DCA 2011), held that the trial court did not abuse its discretion in denying a non-party physician s motion for protective order with regard to financial information, where the plaintiffs were referred to the physician by their lawyer for treatment following an automobile accident and the physician entered into a letter of protection agreement whereby the physician would be paid from any recovery the plaintiffs obtained in the lawsuit. The discovery at issue was relevant to show: that the physician might be biased based on his ongoing financial relationship with the plaintiffs or their lawyer; whether the physician/expert had recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases; and whether the physician allegedly overcharged for the medical services at issue. The limited intrusion into the physician s financial records was justified by the need to discover case-specific information relevant to the reasonableness of the cost and necessity of the procedure at issue. 22. When is a homeowner s insurance policy primary over an automobile insurance policy? In Sunshine State Insurance Co. v. Jones, 77 So. 3d 254 (Fla. 4th DCA 2012), the Fourth District affirmed the trial court s finding that the homeowner s insurer, not the insurer under an automobile insurance policy, was liable for indemnity and the defense of claims against the insured who, while a passenger in a car driven by his girlfriend and owned by his girlfriend s parents, repeatedly reached over and grabbed the steering wheel without altering the direction of the vehicle. The accident occurred when the driver swerved as she was trying to push away her boyfriend, the insured, and thus was not covered by his automobile insurance policy. The boyfriend s grabbing of the steering wheel to annoy his girlfriend was not use of... a non-owned auto within the meaning of the automobile policy. Furthermore, the damages claimed did not fall within the provision of the homeowner s policy excluding claims for bodily - 8 -

11 injury or property damage arising out of the ownership, maintenance, or use of a motor vehicle. 23. Is a claim for injuries as a result of a fall from a hospital test table subject to the medical malpractice statute of limitations and presuit requirements? The district court in Stubbs v. Surgi-Staff, Inc., 78 So. 3d 69 (Fla. 4th DCA 2012), affirmed the trial court s entry of a summary judgment in favor of the defendants in plaintiff s claim for injuries when she fell from a test table at the defendant hospital due to a nurse s failure to exercise reasonable care in assisting her onto a gurney when plaintiff had an allergic reaction to dye given to her for a CT scan. Plaintiff s claims were for medical negligence and thus were barred by the two-year statute of limitations and plaintiff s failure to comply with the presuit requirements. FIFTH DISTRICT DECISIONS 24. May an insured be allowed to reopen her case to introduce the subject insurance policy into evidence before the trial court rules on the insurer s motion for directed verdict? In Grider-Garcia v. State Farm Mutual Automobile, 73 So. 3d 847 (Fla. 5th DCA 2011), the Fifth District held that the trial court abused its discretion when it denied the insured s request to reopen her case prior to the court s ruling on the insurer s motion for a directed verdict. Reopening the case for purposes of permitting the plaintiff to introduce the insurance policy upon which the insured had based her claim would not prejudice the insurer. The insured s attorney s belief that the policy attached to the complaint was part of the evidence, while incorrect, was not unreasonable. The directed verdict entered in favor of the insurer due to the insured s failure to introduce the insurance policy into evidence was therefore reversed, and the case remanded for a new trial. 25. Does the failure to file a privilege log within the time to respond to discovery waive attorney-client privilege and work product objections? The Fifth District in Fifth Third Bank v. ACA Plus, Inc., 73 So. 3d 850 (Fla. 5th DCA 2011), found that the trial court departed from the essential requirements of law when it concluded that the petitioner implicitly waived its attorney-client privilege or work product objections to production by failing to file a privilege log within 30 days of service of the request to produce. The district court reasoned that Rule 1.280(b)(5) does not set forth a time by which a privilege log must be filed. Moreover, implicit waiver of the attorney-client privilege and work product immunity is not favored and is resorted to only when a serious violation occurs because those are extremely important protections. 26. Should defendants be permitted to file counterclaims alleging that a plaintiff s medical bills were not compensable and join the health care providers in the claim for declaratory relief? The district court in Berrios v. Deuk Spine, 76 So. 3d 967 (Fla. 5th DCA 2011), held that the trial court did not abuse its discretion in dismissing the counterclaim filed by defendant alleging that plaintiff s medical bills were not compensable and seeking to make plaintiff s medical provider a party to the lawsuit for declaratory relief. The Fifth District reasoned that allowing a personal injury defendant to sue plaintiff s health care providers and join them to the litigation would undermine the physician-patient relationship and complicate the issues to be resolved in the personal injury suit. The trial court was thus well within its discretion not to allow defendant s counterclaim, particularly given the adverse impact on the plaintiff and health care providers. Nevertheless, the defendant could independently bring any legally cognizable claim it could assert against the medical provider. 27. Must a UM insured comply with the policy s compulsory medical examination provision in order to avoid forfeiting coverage? In State Farm Mutual Automobile Insurance Co. v. Curran, 36 Fla. Law Weekly D2635 (Fla. 5th DCA Dec. 2, 2011), the Fifth District stated that the UM insured s breach of her insurance policy by failing to attend two scheduled compulsory medical examinations ( CME ) and filing suit before complying with the CME provision in the policy did not defeat coverage where the insurer was not prejudiced by the breach. The district court reasoned that a CME provision is a condition subsequent, the non-occurrence of which is an affirmative defense that the insurer has the burden of pleading and proving. The following questions were certified to the Florida Supreme Court: When an insured breaches a CME provision in an uninsured motorist contract, (in the absence of contractual language specifying the consequences of the breach) does the insured forfeit benefits under the contract without regard to prejudice, or does the prejudice analysis described in Bankers Insurance Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985), apply? ; and If prejudice must be considered, who bears the burden of pleading and proving that issue? - 9 -

12 28. What preparation time by an expert may the trial court consider when awarding expert witness fees? The Fifth District in Winter Park Imports, Inc. v. JM Family Enterprises, Inc., 77 So. 3d 227 (Fla. 5th DCA 2011), stated that a trial court may, when awarding expert witness fees, consider the time an expert expended in preparing for deposition, including the time reasonably and necessarily spent when conferring with counsel and in formulating his or her expert opinion through examination, investigation, testing, and/or research. The district court also pointed out that the Supreme Court has specifically stated that a trial court should exercise discretion in a manner consistent with the policy of reducing the overall cost of litigation and keeping such cost as low as justice allows. Insurance Defense Marketing Helping you Connect with Insurance Carriers Insurance Panel Applications Proposals for RFPs Nationwide Coverage A servi ce of LegaL expert ConneCtions, inc

13 Expert Witness Certificates: Creating Accountability for Out-of-State Witnesses in Florida Courts By Doug Jones and Matthew Scanlan Until recently, no mechanism existed for sanctioning an out-of-state expert who gave fraudulent testimony in a Florida court. As explained here, the Florida Legislature recently addressed this issue by requiring an expert certificate for doctors and dentists who want to serve as expert witnesses in Florida malpractice cases. With the passage of HB 479 in the 2011 legislative session, physicians and dentists licensed in other states or in Canada will be required to obtain a certificate prior to providing expert standard of care testimony in support of, or against, physicians or dentists in medical negligence litigation venued in Florida. The bill was priority legislation for the Florida Medical Association (FMA), which saw a need to create accountability for out-of-state physicians and dentists testifying in Florida malpractice cases. Physicians and dentists licensed to practice in Florida have been, at least in theory, subject to disciplinary action if their testimony was found be fraudulent. Before the enactment of HB 479, however, an out-of-state practitioner could only be made to answer for questionable testimony by filing a complaint with the state or specialty board that had licensed or certified the expert. The FMA apparently thought a more direct approach would better serve the citizens of Florida. The legislature agreed. HB 479 created sections , , and , Florida Statutes, establishing expert witness certificates and a process by which out-of-state medical doctors, doctors of osteopathic medicine, and dentists who wish to serve as standard of care expert witnesses in Florida can obtain them. The three sections essentially mirror each other in authorizing any physician or dentist licensed in another state or Canada to obtain a certificate from the Department of Health to participate as a standard of care expert in medical negligence litigation. HB 479 also created section (12), which requires expert witnesses offering standard of care opinions about physicians or dentists in medical negligence actions in Florida either to be licensed in Florida or to possess a valid expert witness certificate. Prior to the passage of these provisions, Florida law required a standard of care expert in a medical negligence action to be a licensed healthcare provider who practiced in the same or similar specialty as the defendant. 1 If the defendant provider was a specialist, the expert must have practiced in the same or similar specialty for three years in active clinical practice, teaching, or in a clinical research program. 2 If the defendant provider was a general practitioner, the expert must have practiced in the same or similar specialty for the past five years in an active clinical practice, teaching, or a clinical research program. 3 These requirements are still in place, but the statutes now require any out-of-state practitioner to follow a registration process and obtain a Florida certificate. 4 By design, the new law makes certification easy. A trip to the Department of ABOUT THE AUTHORS... Doug Jones is a shareholder in the Tallahassee office of Carr Allison. He represents physicians, nursing homes, and other health care professionals in malpractice suits across the state and before state licensing agencies. Mr. Jones has served as Chair of the Florida Defense Lawyers Legislative Action Committee. He has lectured at numerous professional seminars including those related to Florida Defense lawyers and DRI, and he has lectured on professional witness testimony at the Florida State University Center for Professional Development. Additionally, he has been published by the Florida Bar on representation of physicians in malpractice cases. Mr. Jones is admitted to practice before all courts in Florida as well as the United States Supreme Court and the U.S. District Courts for the Northern and Middle Districts of Florida. Mr. Jones is rated AV Preeminent by Martindale-Hubbell. He can be contacted at MattHEW Scanlan is an associate in the Tallahassee office of Carr Allison. He represents clients in a myriad of insurance defense matters, including health care professionals, condominium and homeowner s associations, governmental entities, and insurance carriers in PIP disputes. Following graduation from the Florida State College of Law in 2006, Mr. Scanlan clerked for the Honorable Bradford Thomas at the First District Court of Appeal. Mr. Scanlan is admitted to practice before all courts in Florida, along with the U.S. District Courts for the Northern and Middle Districts of Florida. He can be reached at

14 Health web page for the Division of Medical Quality Assurance 5 reveals a link for Apply for a License, which in turn leads to Apply for Initial Licensure. The applicant then chooses the appropriate certificate ( Dental Expert Witness Certificate, Medical Doctor Expert Certificate, or Osteopathic Physician Expert Certificate ) from a drop-down menu. Regardless of which specialty is chosen, the user is taken to a new page, where a click on Create Account opens a form to be completed by the user. By statute, the applicant is required to provide his/her legal name, mailing address, telephone number, business locations, the names of jurisdictions where they hold a valid license, along with the license numbers, the date of licensure, and the date the license expires. 6 All on-line applicants must provide a valid address. The licensure application costs $50.00 to complete, and can be paid with most credit cards. 7 According to the Department of Health, the applications will be uploaded twice a day Monday through Friday. A confirmation is sent verifying that the application will be reviewed within 10 days. Once the certificate is approved, the applicant will receive an that includes the applicant s license number and instructions for printing the certificate. The certificate is valid for two years. 8 Importantly, the statutes require the Department of Health to approve any new application within 10 days of receipt of the application and fee, assuming the applicant holds a valid license to practice in another state or Canada and has not had a previous expert witness certificate revoked by the board. 9 If the Department of Health fails to act upon the application within 10 days, the application is approved by default. 10 However, the applicant is required to notify the department in writing if he/she intends to rely on an application approved by default. 11 There is no need to rush to the phone to call all currently retained experts. The enactments took effect October 1, 2011, and apply only to causes of action that accrued on or after that date. 12 The Florida certificate only authorizes the physician or dentist to 1) provide a verified written medical expert opinion for pre-suit, and 2) provide expert testimony about the prevailing professional standard of care about a physician or dentist. 13 Although the certificate in no way authorizes the holder to engage in the practice of medicine or dentistry, the statutes specifically provide that the certificate shall be treated as a license in any disciplinary action, and the holder of an expert witness certificate shall be subject to discipline by the board. 14 To add teeth to the legislation, HB 479 also added language to sections , , and , Florida Statutes, which govern the disciplinary actions available by the respective medical Boards. The new language provides that the governing licensing body may discipline a license holder for providing deceptive or fraudulent expert witness testimony related to the practice of medicine 15, osteopathic medicine 16 or dentistry. 17 The obvious purpose of this legislation was to bring testifying physicians and dentists licensed outside the state of Florida under the umbrella of Florida s licensing boards and subject the certificate holder to sanctions for fraudulent testimony. Florida is not the first state to require out-of-state experts to apply for and obtain a license. South Carolina passed a similar measure in 2006; that law not only required all out-of-state experts to have a South Carolina medical license, but also defined expert testimony as practicing medicine. 18 The South Carolina Supreme Court struck down the measure, expressing concern about its effect on treating physicians who no longer resided in the state, and indicating the provision ha[d] the potential to substantially impair the orderly administration of justice. 19 Although it does not appear the Florida provision has the same defect, it will be interesting to see whether similar legal challenges are made. Nothing in the new Florida legislation prohibits certification of an expert that has been disciplined in another state. As long as the applicant expert holds an active and valid license from any state (or Canadian province), and has not had a previous Florida certificate revoked, he or she appears automatically qualified for certification. 20 The new laws have introduced certain quirks as well. For example, since there is no provision for certification of foreign experts licensed in foreign nations other than Canada, potential experts from Great Britain, Australia, or any other non- Canadian foreign country appear to be barred from serving as standard of care experts in Florida medical negligence cases. They may serve only as causation or damages experts, apparently. To the extent this raises access to courts concerns, Florida courts have long held that the medical malpractice statutory scheme should be construed liberally as to not infringe on a citizen s right of access to courts, while at the same time respecting the stated legislative policy of screening out frivolous lawsuits and defenses. 21 It will be interesting to see how courts handle this restriction, or whether the legislature feels it is necessary to make changes. Arguably, another potential quirk is that the new laws impose no requirement that an out-of-state practitioner obtain an expert witness certificate to offer standard of care testimony about a hospital, nurse, or any other health care provider other than a physician or a dentist. 22 Although a strict reading of the statute might suggest the intent to require certification only when the physician or dentist in question is named as a party, this demarcation may not always be clear. For example, in cases where a hospital is sued, at least in part, over alleged malpractice by a staff physician not named as a party, the court may be asked to interpret this provision to determine whether certification is required. It could be argued that a

15 strict interpretation thwarts the obvious purpose of the legislation that is, to insure physicians and dentists licensed outside the state of Florida are subject to sanctions by Florida s licensing boards for fraudulent testimony. How will the enacted legislation impact efforts to retain experts? It is hard to know. The response to this new requirement will likely be individualized. While the application process itself and the $50.00 fee are unlikely to restrain experts who see themselves as advocates for justice, some will realize there is much to lose. The certificate holder is subject to disciplinary action for providing deceptive or fraudulent expert witness testimony. 22 Disciplinary action could have a meaningful financial impact on any expert with substantial expert income. More importantly, an expert who has been sanctioned in Florida for providing deceptive or fraudulent testimony is less likely to be an appealing candidate for retention as an expert in any case in any jurisdiction. Additionally, Florida sanctions may expose the expert to disciplinary action in the state(s) where the expert is licensed to practice. It might also be argued the legislation creates hurdles at the other end of the spectrum. For the lawyer calling the department head at a major university teaching center, the endeavor now requires not only the usual conversation about why the expert should become engaged in a matter involving many lawyers, but additionally, the department head must be told that he/she is not authorized to take on the task until he/ she obtains one more credential a credential which creates nothing positive for them, and has the sole purpose of allowing the Florida governing board to impose a sanction in the event the expert s testimony is viewed with sufficient disfavor. This may make it more difficult to retain well-qualified academic experts to participate as standard of care experts in Florida medical negligence cases. Whatever their blemishes, the new provisions have the potential to temper expert witnesses who believe accepting a retainer is an invitation to take liberties on the stand.the statutes are specifically designed to create a measure of pause. There is reason to hope that this legislation will serve its intended purpose. 1 See , Fla.Stat. (2010) (5)(a), Fla. Stat (5)(b), Fla. Stat (12), Fla. Stat (2011) (1)(a)(1); (1)(a)(1); (1)(a)(1), Fla. Stat. 7 If the applicant wants to pay with a cashier s check or money order, the form should be printed out and mailed (with payment) to Florida Department of Health, Licensing and Auditing Services, 4052 Bald Cypress Way, Bin C-10, Tallahassee, FL (1)(c); (1)(c); (1)(c). 9 Id. at (1)(b). 10 Id. 11 Id. 12 See footnote 1 to , , and , Fla. Stat. 13 Id. at (2). 14 Id. at (3) (1)(oo), Fla. Stat (1)(qq), Fla. Stat (1)(ll), Fla. Stat. 18 S.C. Code Ann ; (36)(h). 19 In re: Act No. 385 of 2006, 2006 S.C. LEXIS 287 (S.C. 2006) (1)(b); (1)(b); (1)(b), Fla. Stat. 21 Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996) (12), Fla. Stat. 23 See supra notes Write for the TAQ... Have you ever thought about writing for the Trial Advocate Quarterly? Do you have an amicus brief or a memorandum of law in your files that might be helpful to others? Have you done research on an interesting issue? Have you spoken at a seminar? All of these can be transformed into an article for publication. FDLA s journal needs your expertise! Writing for the Trial Advocate Quarterly gives you an opportunity to be published, to share (and showcase) your expertise with colleagues, and to network with both members and non-members for referral and employment contacts. Trial Advocate Quarterly is part of the Westlaw legal database and people throughout the world access its contents. The TAQ article writing guidelines are available on the FDLA website go to www. fdla.org, click on TAQ, and then click on TAQ Article Guidelines for a pdf file. These guidelines contain information on preparing your article for publication, the article due dates and contact information for the TAQ editor, Barbara Busharis. The TAQ article listing on the website is searchable go to click on TAQ and you ll see the search feature. You can search for TAQ articles by article title, author or issue. Look through your files and do an article for the Trial Advocate Quarterly!

16 Discovery of Facebook Content in Florida Cases By Christopher B. Hopkins and Tracy T. Segal The constant expansion of social networking websites means that defense practitioners will increasingly have to confront issues of how and when to seek information from these sites during discovery. This article explains how to seek information from Facebook, and describes some recent court orders illustrating the scope of available discovery. Copies of the order in Beswick v. Northwest Medical Center, along with other unpublished Florida decisions addressing social media discovery, can be found on the Members Only section of the FDLA website, Facebook helps you connect and share with the people in your life, proclaims the Facebook homepage. As of December 2011, million people in the United States were posting monthly on their Facebook accounts. 1 Based on these figures, it is likely that a personal injury plaintiff may have an active Facebook account. But how can you access that information in litigation? Courts around the country, including at least one Florida Circuit Court, have compelled discovery of Facebook and other social networking sites, 2 so long as parties meet the minimum showing that the information sought is relevant. This article will explain the steps to obtain Facebook content in discovery. Facebook can provide a treasure trove of information in litigation. The American Academy of Matrimonial Lawyers says that 81% of its members have used or defended against evidence from social networking sites. 3 In specific cases, Facebook content revealed that some personal injury plaintiffs may have exaggerated their injuries. For example, a plaintiff whose leg was injured in a forklift accident claimed continued disability and testified at deposition that he never wore shorts because he was embarrassed of scars on his leg; meanwhile, photos on his Facebook page showing him riding a motorcycle and wearing shorts. 4 Similarly, a plaintiff who alleged she was in constant physical pain and needed a cane to walk posted photographs that showed her enjoying life with her family and wrote a status update about visiting the gym. 5 Another plaintiff, who claimed to be largely confined to her home and bed, posted pictures on Facebook and MySpace which revealed she had traveled from up and down the East Coast and enjoyed an active lifestyle. 6 In each of these cases, the courts allowed the defendants access to the plaintiffs social networking accounts. At the beginning of a case, counsel should search the internet for plaintiffs names to determine whether they have accounts with Facebook or other social media websites. The information that the public can view on an individual s Facebook page will vary depending on the privacy settings that he or she has chosen. A person s name, profile pictures, and user ID are always publicly available. 7 Our experience is that most public Facebook profiles reveal some photos, number of friends, and minimal personal content. Print the public profile and ensure you note the date. As your case progresses, it is a good idea to revisit and re-print the person s profile. That public content, and any changes, may be important in persuading a court to permit access to the Facebook account and you should consider attaching these as exhibits to a Motion to Compel. Discovery requests for social networking information need not be ABOUT THE AUTHORS... Christopher B. Hopkins is a shareholder at Akerman Senterfitt (West Palm Beach office). Mr. Hopkins is the chair of the Palm Beach County Bar Technology Committee and is on the editorial board of the Trial Advocate Quarterly. His is Tracy T. Segal is of counsel at Akerman Senterfitt. She concentrates her practice on civil appeals and complex commercial litigation. Ms. Segal can be reached at tracy

17 complex. The authors of this article have successfully used the following interrogatories: 8 * Please identify any internet social media websites which Plaintiff has used and/or maintained an account in the last five (5) years. Internet social media websites includes but is not limited to Facebook, Twitter, LinkedIn, XboxLive, Foursquare, Gowalla, MySpace, and Windows Live Spaces. * If Plaintiff has Internet social media website account(s), please provide her username and password or, alternatively, under Florida Rules of Civil Procedure Rule 1.340(c), please provide a copy of all non-privileged content/data shared on the account in the last five (5) years. The authors request for production seeking copies of any document (including online material) which you received or accessed in order to answer Social Media Interrogatories has also been enforced by a Florida court. To overcome objections that downloading or printing Facebook content is cumbersome, include in your discovery request a reference to Facebook s (simple) instructions for downloading all account content. 9 Finally, as a general practice, the authors request that plaintiffs execute a consent and authorization permitting them to obtain account content directly from the social medial website (this may lead to evidence of alteration or deletion). Plaintiffs generally object to social media discovery on the basis of relevance, privilege, and the Stored Communications Act. Under Florida rules, Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action 10 Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence. 11 Courts across the county have generally found that Facebook and other social media website postings are relevant to actions where a party s physical condition is at issue. 12 Social media accounts have also been found relevant to jurisdictional issues. 13 In one Florida case, where parents claimed noneconomic damages arising from injuries to their daughter, the court found that social media discovery was clearly relevant to the subject matter of the litigation. 14 A limited number of non-florida courts have focused on the information publically available on Facebook pages in deciding whether to require that non-public portions be produced in discovery. 15 Only a handful of courts have limited discovery where the public portions of a plaintiff s Facebook page did not provide a basis to expect a review of the entire account it to lead to relevant information. 16 Another court limited production to posts that concern [Plaintiff s] health, mental or physical because the Plaintiff had put her health at issue in the lawsuit, but presumably not her entire life. 17 Thus a practitioner may need to be prepared to support discovery requests with evidence and argument from publically available Facebook information (and any changes thereto). There is some risk that litigants may delete posts or close their accounts to avoid discovery. 18 For this reason, the authors include in their discovery requests an interrogatory asking: For any accounts identified in Answer to the Interrogatories above, please describe any changes you have made to your privacy or other account settings, and describe any content which you have deleted or erased after [a relevant date]. Likewise, as stated above, a signed authorization permits defense counsel to request the social media site to produce documentation of account activity. Of course, courts will sanction spoliation if it can be shown. 19 If a plaintiff s public Facebook information is not revealing but you suspect that they are sharing information with their approved friends, questions in depositions of both the plaintiff and family members about the nature of the plaintiff s posts may be helpful to laying a foundation to compel production. 20 For example, testimony that a plaintiff posts regularly about her activities may provide a basis to require disclosure, whereas evidence that she only plays games or reads others posts would be less persuasive. Objections based on privacy, confidentiality or privilege are another common line of attack on social media discovery, but these objections have been uniformly rejected by courts addressing the issue. Long standing principles governing the right to privacy support this conclusion. In the preinternet era of 1967, the United States Supreme Court noted that [w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of fourth Amendment protection. 21 Posting information on the internet makes the information available to any person with a computer and thus open[s] it to the public eye. Under these circumstances, no reasonable person would [have] an expectation of privacy regarding the published material. 22 As a Pennsylvania court wrote in rejecting a privilege claim for Facebook postings, No court has recognized such privilege, and neither will we. By definition, there can be little privacy on a social networking website. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets. 23 One court went so far as to order the production of Facebook and MySpace entries made by minor children who had been denied health care benefits for their eating disorders because

18 the minors themselves chose to disclose the information. 24 The only Florida court known to the authors to have considered the issue rejected a privacy claim for Facebook postings. 25 Finally, plaintiffs may raise objections to social media discovery based on the Stored Communications Act ( SCA ), 18 U.S.C Part of the Electronic Communications Privacy Act, the SCA adds some Fourth Amendment protections to digital and electronic communications by limiting the government s ability to compel Internet Service Providers ( ISPs ) to disclose information about their users, and from restrictions on ISPs voluntary disclosure of customer and subscriber information to the government. 26 Applying the SCA to Facebook and other social media is complicated because the Act uses 1986 computer terminology which fits current technology imperfectly. 27 Nevertheless, at least one court has found that records cannot be subpoenaed directly from Facebook under the SCA. 28 That said, the SCA is not an impediment to discovery from an individual plaintiff. The SCA does not apply to individuals, only to internet service providers and services which store electronic communications. 29 An individual producing his account information to opposing counsel or printouts of his a social medial account does not implicated the SCA. In addition, Florida courts have authority to compel a party to provide an authorization for release of records. 30 Without triggering the SCA, a court may require a plaintiff to execute a consent and authorization that may be served on Facebook (or another social medial site) to obtain all account information, including any altered or deleted content that may be retrievable. 31 Although no Florida appellate court decisions have granted or limited discovery of social medial sites as of the date of this article, the trial court opinions are coalescing around three principles: (1) discovery must be relevant and reasonably likely to lead to admissible evidence; (2) there is no privilege or confidentiality for Facebook postings; and (3) the SCA does not apply to individuals providing information about their own social media accounts. The key to unlocking social media information in discovery is establishing the likelihood it will lead to admissible evidence. 1 Facebook, Inc. s Form S-1 Registration Statement filed February 1, 2012 for Facebook s Initial Public Offering, available at data/ / / d287954ds1.htm 2 Although the focus of this article is on obtaining information from Facebook, the same considerations should apply to Twitter, MySpace, photo sharing sites such as Snapfish and Flikr, and any other blog or social networking sites. 3 Divorce lawyers: Facebook Tops in Online Evidence in Court, USA Today, June 29, See news/ facebook-divorce_n. htm. As this article notes, in family law cases, spouses may have continued access to each other s Facebook postings because they have not been de-friended, know the password, or have friends in common with their spouse who are willing to provide information. Thus, the evidence is often available without the use of formal discovery. 4 Zimmerman v. Weis Markets, Inc., 2011 WL (Pa. C.P. Northumberland May 19, 2011). 5 Largent v. Reid, No , slip. op. (Pa. C.P. Franklin Nov. 8, 2011). 6 Romano v. Steelcase, Inc., 30 Misc. 3d 426 (N.Y. Sup Ct. 2010). 7 Facebook Date Use Policy Sharing and finding you on Facebook, https://www. facebook.com/about/privacy/your-info-onfb#controlpost. 8 The authors propound additional interrogatories regarding internet photo, still image or video sharing websites which you have used and/or maintained an account and any blog or internet message board, chat room or public forum in which you have participated tracking this language Fla. R. Civ. P (b). 11 Allstate Inc. Comp. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). 12 See, e.g., Zimmerman v. Weis Markets, 2011 WL ; Largent v. Reid, supra n.5; Romano v. Steelcase, 30 Misc. 3d In re: Air Crash Near Clarence Center, New York, On February 12, 2009, 09-md-2085 (W.D. N.Y. 2011) (order dated December 17, 2011). 14 Beswick v. Northwest Medical Center et. al., No (17th Judicial Circuit, Broward Cty, FL, Nov. 3, 2011), available at 15 See e.g., Romano v. Steelcase, Inc., 30 Misc. 3d at Piccolo v. Paterson, No (Pa. C.P. Bucks May 6, 2011) (denying requests to see photographs on plaintiff s Facebook page where defendant had already taken many post-accident pictures of Plaintiff s post-accident scars). 17 Largent v. Reed, supra n.5, at Can Your Facebook Account Be Used Against You in Your Personal Injury Lawsuit?, John Cord Law, LLC, posted January 12, 2012, charmcitylawyer.com/can-your-facebookaccount-be-used-against-you-in-yourpersonal-injury-lawsuit/; Social Networking Warning Letter Form for Clients, Karen Koehler, posted May 18, 2011, karenkoehlerblog.com/2011/05/socialnetworking-warning-letter-form-for-clients/. 19 Lester v. Allied Concrete Co., Nos. CL , CL (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-15, CL (Va. Cir. Ct. Oct. 21, 2011) (sanctioning Plaintiff $180,000 and his counsel $542,000 because counsel urged Plaintiff to clean-up photos from his Facebook account after discovery had been served. One deleted picture showed Plaintiff drinking with his arm around a young women, months after the traffic death of Plaintiff s young wife, which was the subject of the lawsuit.) 20 Counsel are cautioned against sending a friend request to the plaintiff or asking someone else to do so, to avoid ethics issues. See Philadelphia Bar Association Professional Guidance Committee Opinion , available at http: //www.philadelphiabar.org/webobjects/ PBAReadOnly.woa/Contents/WebServer- Resources CMSResources/Opinion pdf. 21 Katz v. United States, 389 U.S. 347, 351 (1967) (finding the expectation of privacy applies to phone calls made from a public telephone booth). 22 Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125, 1130 (Cal. 5th Dist. 2009) (dismissing invasion of privacy claim where a MySpace post was republished in the newspaper). 23 Largent v. Reed, supra n.5, at Beye v. Horizon Blue Cross Blue Shield of New Jersey, 2007 WL *2 (D.N.J. 2007), rev d in part and affi d in relevant part 2008 WL (D.N.J. 2008). 25 Beswick v. Northwest Medical Ctr., supra n Pub. L. No , 100 Stat (1986). 27 See Largent v. Reed, supra n.5, at Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010). 29 Largent v. Reed, supra n.5, at Rojas v. Ryder Truck Rental, Inc., 641 So. 2d. 855, 857 (Fla. 1994). 31 Beswick v. Northwest Medical Ctr., supra n. 14, at

19 WINTER 2012 FDLA s hardy returned to Big Sky, Montana for the 2012 Winter Seminar over the Martin Luther King weekend in January. Yes, there was snow in Montana, unlike some of the other western ski areas. In keeping with FDLA Winter Seminar tradition, the CLE program was exceptional. This small seminar promotes in-depth discussion and exchange of ideas among many of FDLA s most experienced defense lawyers. For each of three mornings breakfast is served and a variety of topics are presented. Daniel J. Santaniello (Luks Santaniello Petrillo & Jones, Ft. Lauderdale), aided by Francis E. Pierce IV(Mateer & Harbert, Orlando), presented Facebook Discovery; Susan S. Erdelyi (Marks Gray, Jacksonville) spoke on Keeping In-House Counsel Happy; L Johnson Sarber III (Marks Gray, Jacksonville) provided the Medicare Set Aside Update; Farhad Booeshaghi (Global Engineering & Scientific Solutions LLC, Royal Palm Beach) gave attendees An Engineer s Solution to Case Management; Gerald W. Weedon (Marks Gray, Jacksonville) challenged attendees with Navigating Everyday Ethical Challenges; a discussion on Recent Updates and Legal Developments in the World of Medical Malpractice was led by Francis E. Pierce III (Mateer & Harbert, Orlando), Jeptha F. Barbour (Marks Gray, Jacksonville), Thomas E. Dukes III (McEwan Martinez & Dukes, Orlando), and G. Franklin Bishop (McEwan Martinez & Dukes, Orlando); and Joseph E. Brooks (Brooks Masterson, Tallahassee) ended the seminar with his presentation on Trial Techniques for Witness Examination. Thanks to L. Johnson Sarber, III for coordinating the seminar. Florida attorneys earned 6.0 hours of CLE credit (including 1.0 ethics) for the seminar. Following the seminar, attendees hit the slopes or tried some of the many winter activities available in Big Sky. The Big Sky Resort-Moonlight Basin interconnect gave access to more skiing than anywhere else in the United States, with shorter lift lines and smaller crowds. Winter activities abounded cross-country skiing snowshoeing ice skating zip lines horseback riding and snowmobiling in Yellowstone National Park. Each evening, attendees gathered at a reception to mix and mingle and share their moments of glory or chagrin. On Saturday evening, attendees were treated to dinner and fun at the Annual Farewell Dinner with entertainment provided by a local duo. FDLA President Johnny Sarber presented a variety of awards to attendees. You needed to be there to appreciate the care and thought that went into determining the award recipients. The Winter Seminar, held over the Martin Luther King Jr. Weekend, is one of FDLA s best, with outstanding CLE credits, socializing, family fun, and, of course, terrific skiing, snowboarding, or a host of other outdoor winter activities. Once you ve attended an FDLA Winter Seminar, you ll want do so again! FDLA is exploring the possibility of returning to Big Sky or another western ski resort for the 2013 Winter Seminar. Dates would be the Martin Luther King weekend, January 16-21, We invite any one interested to join us! Put these dates on your calendars and watch for additional details

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