HOW FAR CAN SOCIAL MEDIA DISCOVERY GO?

The explosion of social media continues to have an impact in litigation. Specifically, challenges to social media evidence and to what extent social media discovery should be allowed in personal injury and wrongful death cases. A recent appellate decision from Florida’s Second District Court Appeal addressed the scope of discovery requests about social media.

In Root v. Balfour Beatty Construction, LLC, So.3d, 39 FLW D277 (Fla. 2nd DCA 2-5-2014) the defendant attempted to seek social media discovery of the Plaintiff. In the Root case, the law suit involved a three year old child who was hit by an oncoming car in front of a construction site maintained by the defendants. In responding to the law suit, the defendant alleged that the plaintiff bore responsibility in part by negligently entrusting the child’s 17 year old aunt with the care of the child.

As part of the defense, the defendant sought records of the plaintiff’s social media accounts. Specifically, the defendant’s sought production of the child’s mother’s Facebook account, including copies of postings, statuses, photos, likes and other general discovery, going as far as looking for counseling or psychological information. The plaintiff objected on the grounds that the requests were irrelevant.

The Second District Court of Appeals found that given the posture of the case at the time, the requested discovery was not related to the negligence claim or the claim for loss of consortium claim. The court went on to hold that as to any loss of consortium claim the discovery should be limited to the impact of the child’s injury upon the mother. The defense was unable to point to any basis to support their contention that the requested information was relevant and discoverable, and it found that the requested discovery constituted a fishing expedition.

Social media has become relevant in all forms of litigation and discovery, but the underlying rules of law apply. All discovery requests, social media or not, must be relevant and likely to lead to the discovery of admissible evidence.

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