Social media has exploded in popularity in the last decade. Many people
enjoy using sites like Facebook and Twitter to keep in touch with friends
and family. At the same time, use of social media has raised some serious
concerns about privacy. Media reports tell us that people venting about
their jobs on social media have been fired for doing so. Others worry
that potential employers will view their social media posts before making
a decision about whether to hire them.
Balancing privacy concerns against free access to information has created
dilemmas for courts as well. Parties to lawsuits now routinely seek information
about social media posts from their opponents, hoping to find damaging
statements or photos which can be used in court.
Because the issue is relatively new, courts around the country have not
reached a consensus about what social media information is fair game.
Fortunately, the Florida appeals court for the Tampa Bay area recently
took a step to provide some guidance on this subject. It limited the type
of information an opposing party could discover from a plaintiff in a
personal injury case.
Root v. Balfour Beatty Construction, began when a small child was injured after being struck by a vehicle on a
construction site. His mother sued the construction company and alleged it had made
the work site unsafe for
The construction company then asked to see the mother's Facebook postings
from her personal account. The request was broad, and included any posts
relating to her relationship with her injured son and other children,
relationships with husbands, boyfriends, and family members, and any posts
concerning mental health and alcohol or drug use. The mother refused to
provide that information, and the dispute went to the Second District
Court of Appeal for a decision.
The appeals court found that social media evidence is discoverable generally.
However, it also said there must be limits. Just as with other information
parties are required to disclose, it must be relevant, or at least have
a reasonable hope of leading to something relevant.
Using those guideposts, the court found the information being requested
by the defense was too remote from the real issues. The court said the
focus should be on the impact the son's injury had on his mother.
Instead, the court wrote, the defense was asking for postings about the
mother's relationship with her other children, family members, and
boyfriends, along with other extraneous information about mental health,
substance abuse, and other lawsuits. It concluded that courts should guard
against this "type of carte blanche discovery."
It is good that our appeals court has provided some much-needed guidance
about this developing area of law. Having said that, we continue to believe
that people - even those not involved in lawsuits - should be very careful
about what they post on social media. The law on this issue is still at
an early stage, and there may be changes on the way. And of course, you
don't have to be part of a lawsuit to have social media get you in
trouble with friends, acquaintances, or potential employers.