Social media in the sunshine: discovery and ethics of social media - Florida's right to privacy should change the analysis.

• Author: Kuvin, Spencer
• Position: St. Thomas Law Review 25th Anniversary Issue

INTRODUCTION

Social media has vastly transformed society and the way people communicate. Statistics show that as many as eighty-three percent of Internet users in America between the ages of eighteen and twenty-nine use a social networking site, such as Facebook, Twitter, Pinterest, Instagram, or Tumblr. (1) The legal system has not escaped social media's broad and sweeping effect. (2) Most notably, social media has changed the way discovery is conducted in litigation because there is more personal information available on a social networking site than any attorney could possibly expect to acquire from medical records, standard interrogatories, or requests for production. (3) In many situations, with a simple Internet search, an attorney can learn what kind of mood opposing counsel's client was in the day after she filed her complaint against his client. (4)

For instance, imagine you have just signed up what you think will be a great auto accident personal injury claim. Your client, Jane Doe, comes into your office in what appears to be great pain, limping, and holding her neck. Her MRIs come back with significant herniations, she is taking various pain medications, and she is recommended for surgery. During your initial intake, you fail to ask about Ms. Doe's social media accounts. During Ms. Doe's deposition with defense counsel, attorney Joe Black presents Ms. Doe with photographs printed from her Facebook profile showing Ms. Doe at Disney with her kids, riding roller coasters, and drinking around the world at Epcot. Ms. Doe is outraged and asks you, "How is he allowed to do this to me?" It appears that Ms. Doe has not only posted these photos just a few months after her car crash, but she also has failed to set any privacy settings on her photos so anyone with an internet connection could view and download these photos, including Joe Black. Welcome to the world of Internet discovery.

In addition to its effect on discovery, the advent of social media in the legal system has widely affected the behavior of aspiring attorneys, practicing attorneys, and judges, testing their ethical boundaries. (5) This article will discuss the effect social media is having nationally, with a focus on Florida litigation. The ethical issues regarding the use of social media, which start at admission to the Florida Bar through practicing law and even at the level of the judiciary, will also be covered. While most federal and state courts thus far have focused their analysis on the broad nature of discovery and social media's similarity to any other electronic discovery, this analysis misses a significant distinction under Florida law, specifically article I, section 23 of the Florida Constitution and a citizen's right to privacy. Florida's Constitution currently addresses only government intrusion, which includes court orders of discovery. (6) Further, strong suggestions have been made that this provision should be amended in the next Constitutional Convention to expand this provision to private or corporate intrusions into private lives. Social media is not just any electronic discovery, social media is a window into an individual's sometimes highly private circle of friends and family. With today's strict privacy settings, it can reasonably be said that some users have a reasonable expectation of a right to privacy which should be upheld absent a waiver or compelling interest.

The question is whether the liberal discovery rules have gone too far and where the line should be drawn in Florida to protect the privacy interests of individuals from being implicated by overly permissive rules of discovery. Current case law on this issue is informative, but demonstrates that courts need direction on how to decide these complex issues in a uniform manner. The courts that have rendered decisions regarding discovery of social networking sites ("SNS") have made attempts to balance individual privacy interests in the information contained on the SNS with the broad rules of discovery. (7) Focusing on Florida law, this article will argue that, even in the absence of a constitutional or legislative amendment, federal discovery rules and Florida law dictate that individual privacy interests should play a larger role in a court's determination of whether the content contained on SNS is automatically discoverable.

1. BACKGROUND

   1. STATISTICS

      According to the latest statistics compiled by Online Schools, the use of Facebook has exploded over the last five years. (8) With over 500 million users, one in every thirteen people on earth now uses Facebook, with over 250 million of them (over fifty percent) logging in every day. (9) Forty-eight percent of eighteen to thirty-four-year-olds check Facebook when they wake up, with about twenty-eight percent doing so before even getting out of bed. (10) Over 700 billion minutes per month are spent on Facebook, twenty million applications are installed per day, and over 250 million people interact with Facebook from outside the official website on a monthly basis, across two million websites. (11) In just twenty minutes on Facebook, one million links are shared, almost two million friend requests are accepted, and almost three million messages are sent. (12) Not far behind these shocking Facebook statistics, a study shows that Twitter awareness grew from five percent of Americans in 2008 to eighty-seven percent of Americans in 2010 and has over 105,779,710 registered users. (13)

   2. USING FACEBOOK & RELEVANCE

      Evidence from social networking sites can prove pivotal in all kinds of cases: (14) imagine the possibility of an incriminating Facebook statement of a criminal defendant, damaging pictures of a personal injury plaintiff, or a YouTube video in a bitter child-custody battle. (15) Additionally, consider the relevance of a glowing testimonial on LinkedIn when used to make or break an employment case. To prove this point, the Proceedings of the National Academy of Sciences recently published findings which show that by merely accessing a person's "likes" on Facebook, scientists can accurately predict attributes including: sexual orientation, political views, personality traits, intelligence, happiness, and use of addictive substances, among other factors. (16) The accuracies of these predictions were, in some cases, as high as ninety-five percent. (17)

      Contrary to some users, and judicial understanding of social media, Facebook allows users to maintain very strict privacy restrictions. Facebook has provided the following explanations concerning the available privacy restrictions that users are permitted to take advantage of:

      * Your friends on Facebook are the same friends, acquaintances and family members that you communicate with in the real world.

      * We built Facebook to make it easy to share information with your friends and people around you.

      * We understand you may not want everyone in the world to have the information you share on Facebook; that is why we give you control of your information. Our default privacy settings limit the information displayed in your profile to your networks and other reasonable community limitations that we tell you about.

      * Facebook is about sharing information with others--friends and people in your networks--while providing you with privacy settings that restrict other users from accessing your information. We allow you to choose the information you provide to friends and networks through Facebook. Our network architecture and your privacy settings allow you to make informed choices about who has access to your information. (18)

      The availability of these restrictions that users have the option to place on their Facebook pages has certainly not narrowed the widespread effect social media has had on litigation. A majority of users either decide to allow their profiles to remain public or have an insufficient understanding of their privacy options. (19)

      While photos, videos, and statements posted on a social networking site are what most lawyers seek during discovery, the evidentiary value of other features associated with such profiles should not be overlooked. For example, mood indicators and emoticons are often employed by a user to share his or her current mood. (20) What was the "mood" of the litigant the day, or a week, after an accident? How about the moods and postings of an employee weeks after their termination? In addition, an often-overlooked feature, which could also be deemed discoverable evidence in a case, is a user's "friend" list. This list could lead to other potential witnesses that an opposing attorney may seek as discoverable evidence in litigation. Comments by "friends" on a litigant's SNS may also reveal long forgotten communications or other issues in the case.

2. DISCOVERY OF SOCIAL MEDIA INFORMATION IN FLORIDA

   As of the date of this Article, no Florida appellate court has addressed the extent to which an individual's social media information is discoverable. (21) Therefore, it is likely that Florida courts will decide these issues based on other states' and federal courts' analyses. This unfortunately ignores a significant difference in Florida: its citizens' strong push toward individual privacy. Florida courts should take a much more restrictive approach when determining whether the information contained on an individual's SNS is automatically discoverable. In general, United States courts have allowed for discovery of information contained on an individual's social networking profile when the requests for such information are narrowly tailored to what is relevant to the litigation and the requesting party has established a basis for the request. (22)

   Several recent courts' permissive approach to allowing broad discovery of SNS has threatened to stretch the intent of the Federal Rules, to allow counsel to tailor their requests in a way that readily permits access to an individual's private thoughts, experiences, and activities, that...