IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

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1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA ERICA LEVINE CIVIL DIVISION AI CASE No CA XXXXMB vs. Plaintiff, CULLIGAN OF FLORIDA, INC., a Florida corporation, vs. Defendant/Third Party Plaintiff, THE LAW OFFICES OF CHAD R. LAING, P.A. d/b/a LAING LAW GROUP, a Florida corporation, Third Party Defendant. / ORDER SUSTAINING PLAINTIFF S OBJECTIONS TO SOCIAL NETWORKING DISCOVERY THIS CAUSE came before this Court on Plaintiff s, Erica Levine, objections to Defendant Culligan of Florida, Inc s Supplemental Request for Production dated July 24, This Court, having carefully reviewed the objections and all applicable legal authority, having heard argument of counsel, and being otherwise fully advised in the premises does hereby determine as follows: I. INTRODUCTION Estimated at over 800 million users, Facebook has pervaded society. Along with other social media such as Instagram and Twitter, it seems like everyone from the President, First Lady, celebrities and major corporations are using social media sites. Even the Pope now has a Twitter account. As with all new technology, it is not surprising that lawyers have recognized the need to embrace and respond to new challenges associated with such technology. Social

2 media sites may well prove to be a treasure trove for evidence in litigation. Many cases now include standard social media discovery requests seeking everything from information publicly available on Facebook to private passwords of parties to litigation. While a number of courts outside of Florida have addressed these issues, no Florida appellate decision has yet to address or resolve discovery in the context of social media evidence. II. DISCOVERY STANDARD In Florida, [p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. Fla. R. Civ. P (b)(1). It is not ground for objection that the information sought will be inadmissible at [ ] trial if the information sought appears reasonably calculated to the discovery of admissible evidence. Id.; Toledo v. Publix Super Mkts., Inc., 30 So. 3d 712, 714 (Fla. 4th DCA 2010). Therefore, even if a request is for non-privileged information, it must still be relevant to the subject matter and either admissible or reasonably calculated to lead to admissible evidence. Capco Props., LLC v. Monterey Gardens of Pinecrest Condo., 982 So. 2d 1211, 1213 (Fla. 3d DCA 2008). The rule allowing a party to request production is not designed to afford [an] avenue to pry into adversary s business or to go on a fishing expedition... See McDonald s Rests. of Fla., Inc. v. Doe., 87 So. 3d 791, 794 (Fla. 2d DCA 2012) (citing Inrecon v. Vill. Homes at Country Walk, 644 So. 2d 103, 105 (Fla. 2d DCA 1994). Similarly, litigants are not entitled to carte blanche discovery of irrelevant material. Life Care Ctrs. of Am. v. Reese, 948 So. 2d 830, 832 (Fla. 4th DCA 2007) (quoting Residence Inn by Marriott v. Cecile Resort, Ltd., 822 So. 2d 548, 550 (Fla. 5th DCA 2002). To this end, a trial court is given wide discretion in deciding discovery matters, and unless there is a clear abuse of that discretion, the appellate court will not - 2 -

3 disturb a trial court s order. Alvarez v. Cooper Tire & Rubber Co., 75 So. 3d 789 (Fla. 4th DCA 2011). III. STATEMENT OF THE CASE This case arises out of a slip and fall accident that occurred on May 19, According to the Complaint, Erica Levine ( Plaintiff ) was working at 6111 Broken Sound Parkway Northwest, Suite 330, Boca Raton, Florida at the Law Firm of Laing & Weicholz, P.L., when she slipped and fell on water leaking from a bottle. Cmpl. 6. Plaintiff alleges that Culligan of Florida, Inc. ( Defendant ) negligently distributed and delivered the defective water bottle to the law firm. Id. at 8, 12. As a result of the fall, Plaintiff alleges permanent physical injuries, pain and suffering, mental anguish, and loss of earnings. Id. 15. On June 29, 2012, Defendant filed a third party complaint ( Third Party Complaint ) against the Law Offices of Chad R. Laing, P.A. d/b/a Laing Law Group ( Laing Law Group ). D. E. 68 (Third Party Complaint). On July 24, 2012, Defendant served Plaintiff with Supplemental Requests for Production seeking social networking discovery. 1 Defendant submits that by making a claim for personal injuries in this case, Plaintiff has placed her physical condition and quality of life into question. As a result, Defendant argues it is entitled to determine if Plaintiff s alleged injuries and physical limitations have affected her hobbies, social activities, ability to work or travel, and her emotional state, as she claims. Defendant asserts that evidence which contradicts Plaintiff s sworn deposition testimony may exist on social networking sites maintained by Plaintiff. (emphasis added). In response, on August 28, 2012, Plaintiff objected to each of Defendant s requests as being irrelevant, vague, overbroad and not calculated to lead to the discovery of admissible evidence. 1 Defendant asks for content from Facebook and any other social media networking site including, but not limited to, Twitter, MySpace, Tumbler, Instagram, LinkedIn, Google+, Four Square, Flicker, Pinterest, Filmow, Film Affinity, and Flixster

4 The following two requests for production are at issue: (1) All Electronic Communications Service Provider Content from Facebook downloaded in compliance with the download a copy instructions attached to this Request. This includes but is not limited to the production of all photographs, postings, videos, notes, profile information, wall posts, friend lists, sent and received messages, and any comments that [Plaintiff] and/or [Plaintiff s friends] made on [Plaintiff s] wall post, photographs and other profile content. (2) Electronic copies of Plaintiff s complete profile on any and all other social networking sites or all Electronic Service Provide content (including but not limited to Twitter, MySpace, Tumbler, Instagram, LinkedIn, Google+, Four Square, Flicker, Pinterest, Filmow, FilmAfinity, Flixster), including all updates, changes, or modifications to Plaintiff s profile and any and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, detailed blurbs, comments and applications for the period from the date of the incident to the present. To the extent copies are not available, please provide documents in hard copy. See D. E. 73 (Defendant s First Supplemental Request for Production). In response to Plaintiff s objections, Defendant seeks an order compelling Plaintiff to respond to the above quoted requests for production. IV. SOCIAL NETWORKING SITES Social networking sites, such as Facebook, are free websites where an individual creates a profile which functions as a personal web page and may include, at the user s discretion, numerous photos and a vast array of personal information including age, employment, education, religious and political views and various recreational interests. Trail v. Lesko, 2012 WL (Pa. Com. Pl. July 5, 2012). Once a user joins a social networking site, he or she can use the site to search for friends and create linkages to others based on similar interests. Kelly Ann Bub, Comment, Privacy s Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433, 1435 (2011). Through the use of these sites, users can share a variety of materials with friends or acquaintances of their choosing, including tasteless jokes, updates on their love lives, poignant - 4 -

5 reminiscences, business successes, petty complaints, party photographs, news about their children, or anything else they choose to disclose. Bruce E. Boyden, Comment, Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law, 65 Ark. L. Rev. 39, 42 (2012). As a result, social networking sites can provide a treasure trove of information in litigation. Christopher B. Hopkins, Discovery of Facebook Contents in Florida Cases, 31 No. 2 Trial Advoc. Q. 14 (2012). Today, discovery of social media in litigation has become such a concern that the Sedona Conference recently held a Primer on Social Media to address these challenges. 2 V. ANALYSIS To date, no Florida appellate court has addressed discovery requests for information contained within an individual s social networking profile. 3 While there is no guiding precedent in Florida, courts throughout the country have issued numerous opinions utilizing different analyses regarding when and what social networking information should be discoverable. These holdings range anywhere from requiring the litigant to turn over all social networking information including logins and passwords, 4 to adding the judge in the case as a friend to obtain access and perform an in camera review. 5 Kelly Ann Bub, Comment, Privacy s Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433, 1442 (2011). Other courts permit discovery of social networking content so long as the request is narrowly tailored. 6 Likewise, courts have denied discovery requests for Facebook material which were not narrowly tailored. See Piccolo v. Patterson, No (Pa. C. P. Bucks May 6, 2011); see also Kennedy v. Norfolk S. Corp., No (Pa. C. P. Phila. Jan 15, 2011). See generallythe Sedona Conference Primer on Social Media, Working Group Series, Oct There is a trial court order from Broward County that will be discussed infra. Beswick v. Nw. Med. Ctr., 2011 WL (17th Judicial Circuit Nov. 3, 2011). 4 Romano v. Steelcase Inc., 907 N.Y.S. 2d 650 (Sup. Ct. 2010). 5 Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL (M.D. Tenn. June 3, 2010). 6 EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010)

6 Although courts disagree on when to allow discovery of social media, most courts agree that social networking content is neither privileged nor protected by any right of privacy. See e.g., Davenport v. State Farm Mut. Auto Ins. Co., 2012 WL *1 (M.D. Fla. Feb. 21, 2012). Similarly, courts seem to be in agreement that the Stored Communications Act (SCA) 18 U.S.C prohibits records from being subpoenaed directly from Facebook and other social networking sites. See e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (CD. Ca. 2010). However, in Florida, in certain circumstances, courts may require a plaintiff to provide a signed authorization for the production of relevant social media discovery to allow an opposing party to obtain those records directly. See Rojas v. Ryder Truck Rental, Inc., 641 So. 2d 855 (Fla. 1994). A. Cases Cited by Defendant Here, Defendant relies on several cases to support its position that Plaintiff s social networking profiles are discoverable. In Equal Employment Opportunity Commission v. Simply Storage Management, LLC, 270 F. R. D. 430 (S. D. Ind. 2010), the court ordered production of certain social networking information about a claimant. Amongst other requests, the defendant requested the claimants complete profiles on Facebook and Myspace for a three (3) year period of time before and after the claim. Id. at 432. In its opinion, the court made the following conclusions: (1) social networking information is not shielded from discovery simply because it is locked or private; (2) social networking information must be produced when it is relevant to a claim or defense in the case; and (3) allegations of depression, stress disorders, and like injuries do not automatically render all social networking information relevant. Id. at The court discussed the broad and permissive nature of the rules of discovery but noted that the party seeking the discovery must narrowly tailor its requests to reflect the relevant legal issues in the case. Id. at 433. Ultimately the court concluded that the requests were narrowly tailored and - 6 -

7 ordered the production of all social networking information that reveals, refers, or relates to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state. Id. at 436. Next, Defendant relies upon Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 WL , *8 (D. Nev. 2007), for the proposition that defendants may discover private messages exchanged with third parties through Myspace. Interestingly, the Mackelprang court denied the defendant s motion to compel the plaintiff to consent to the release of her social networking profile messages. Id. at *9. The court concluded that seeking information that might be contained in the messages was equivalent to engaging in a fishing expedition since the defendant ha[d] nothing more than suspicion or speculation as to what information might be contained in the private messages. Id. at *2. The court noted that permitting discovery of all private messages on Myspace would allow the defendants to cast too wide a net for any information that might be relevant and discoverable. Id. at *7. It would also permit [d]efendants to [ ] obtain irrelevant information,... which [is] not... admissible or discoverable. Id. Although the court ultimately denied the motion to compel, it should be noted that the ruling did not hold that social networking information is never discoverable. Rather, the court left open the possibility that such information could be discoverable in certain instances. Id. at *9. Specifically, the court stated that the appropriate way to obtain the information is to serve a narrowly tailored request. Id. Otherwise, the court explained, a litigant is merely engaging in a fishing expedition where he or she has no basis for discovering the material in the account. Id. at *

8 Finally, Defendant relies on Beswick v. Northwest Medical Center, Inc., 2011 WL (17th Judicial Circuit Nov. 3, 2011) and Romano v. Steelcase, Inc., 907 N.Y.S. 2d 650, 653 (NY. Sup. Ct. 2010). In Beswick, a Broward County judge held that social networking content was clearly relevant and reasonably calculated to lead to admissible evidence in a personal injury case. Beswick, 2011 WL The court relied on Romano to support its conclusion that an individual has no legitimate reasonable expectation of privacy in information that an individual shares through social networking sites such as Facebook and MySpace. Id. Although the Beswick court does not rely on Romano when concluding that the information is reasonably calculated to lead to admissible evidence, it is worth noting that Romano is factually distinguishable from the facts of the instant case. See id. In Romano, the plaintiff claimed that she sustained permanent injuries and could no longer participate in certain activities, such as traveling, and was largely confined to her house and bed. Romano, 907 N.Y.S. 2d at 654. Despite these claims, the public portions of the plaintiff s Facebook and Myspace accounts showed that she [had] an active lifestyle and [had] traveled to Florida and Pennsylvania during the time period she claim[ed] that her injuries prohibited such activities. Id. at 653. The court found that the public portions of her profiles included content that was relevant and concluded that there was a reasonable likelihood that similar content would be available on the private portions of her profiles. Id. at 654. In the instant case, unlike Romano, no such showing has been made. B. This Court s Independent Research In McCann v. Harleysville Ins. Co. of New York, 910 N.Y.S. 2d 614 (N.Y. App. Div. 2010), a court upheld the denial of a motion to compel Facebook information because the defendant failed to establish a factual predicate with respect to the relevance of the evidence, finding that defendant essentially sought permission to conduct a fishing expedition into - 8 -

9 plaintiff s Facebook account based on the mere hope of finding relevant evidence. (quoting Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E. D. Mich. Jan 18, 2012). In Tompkins, despite holding that social networking information was not privileged or protected by privacy, the court found that a discovery request was overly broad and irrelevant. Id. There, the defendant attached to its motion a photo from the plaintiff s public profile showing her holding a small dog at a birthday party. Id. at The defendant argued that the photo was inconsistent with the plaintiff s claim of injury and therefore it was likely that her private postings would contain relevant information. Id. at 388. In rejecting this argument, the court noted that the dog appears to weigh no more than five pounds and could be lifted with minimal effort. Id. at 389. The court concluded by explaining that if her profiles contained pictures of her playing golf or riding horseback [then] [d]efendant might have a stronger argument for delving into the nonpublic section of her account. In McMillen v. Hummingbird Speedway, Inc., 2010 WL (Pa. Com. Pl. 2010), the plaintiff alleged substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life. Analogous to Romano, the public portions of the plaintiff s Facebook account contained comments about the plaintiff s fishing trip and his attendance at the Daytona 500 race in Florida. Id. Similarly, in Zimmerman v. Weis Markets, Inc., 2011 WL (Pa. C.P. Northumberland May 19, 2011), 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 legs; meanwhile, photos on his Facebook page showed him riding a motorcycle wearing shorts. Unlike the instant action, in each of these cases, the court compelled discovery of social networking content because the public portions of the plaintiffs profiles - 9 -

10 contained information relevant to their claims thereby making it reasonably likely that additional relevant information was contained in the private portions of their profiles. In analyzing cases where similar requests have been sought, it is apparent that the critical factor in detetmining when to permit discovery of social media is whether the requesting party has a basis for the request. 7 Often times, courts have compelled discovery of social networking content after the requesting party viewed public portions of opposing parties profiles which contained relevant information. As a result of that information, there was reason to believe that the private portions might contain relevant information as well. Therefore, those courts logically concluded that the requests were reasonably calculated to yield information that would lead to admissible evidence. Here, Defendant has not alleged any factual basis indicating that Plaintiff s profiles contain information relevant to the pending matter. Stated differently, Defendant has not come forth with any information from the public portions of any of Plaintiff s profiles that would indicate that there is relevant information on her profiles that would contradict the claims in this case. While it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private profile, it is necessary that the defendant have some reason to believe that the private portion of a profile contains information relevant to the case. It is not enough to simply state that evidence may exist on social networking sites maintained by Plaintiff. Just because Plaintiff has a social networking account, this Court should not assume that she has posted information relevant to this case on her private profile. Further, while Defendant s second request for all other social networking sites is limited form the date of the incident until present, Defendant s initial request for Plaintiff s McMillen, 2010 WL (Pa. Com. Pl. 2010); Romano, 907 N.Y.S. 2d 650 (Sup. Ct. 2010); McCann, 910 N.Y.S. 2d 614 (N.Y. App. Div. 2010); Mackelprang, 2007 WL (D. Nev. 2007)

11 Facebook profile is not limited in time and therefore overly broad. Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Tompkins, 2012 WL at *2. Rather, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Id. Based on the foregoing it is hereby, prejudice. ORDERED AND ADJUDGED that Plaintiff s Objections are SUSTAINED, without DONE AND ORDERED, in Chambers at West Palm Beach, Palm Beach County, Florida this 29 th day of January, Copies provided to: Arthur J. Laplante, Esq. Ashley N. Sybesma, Esq. Hinshaw & Culbertson, LLP One East Broward Blvd.. Suite 1010 Ft. Lauderdale, FL asybesma@hinshawlaw.com John A. Howard, Esq. Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A Centrepark Drive East, Suite 200 West Palm Beach, FL jhoward@conroysimber.com John T. Getz, Esq. Feldman & Getz, LLP One Royal Palm Place 1877 South Federal Highway, Suite 302 Boca Raton, FL jgetz@feldmangetz.com Jeffrey A. Mowers, Esq NW 77th CT, Suite 300 Miami Lakes, FL jmowers@lbbslaw.com