Academic journal article St. Thomas Law Review

Social Media in the Sunshine: Discovery and Ethics of Social Media - Florida's Right to Privacy Should Change the Analysis

Academic journal article St. Thomas Law Review

Social Media in the Sunshine: Discovery and Ethics of Social Media - Florida's Right to Privacy Should Change the Analysis

Article excerpt

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. …

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