By Scott J. Kennelly and Scott St. Amand

The advent of social media has brought about many changes in the world of litigation, not the least of which is the availability of information that previously would have been impossible to discover. It is hardly an exaggeration that between Facebook, Instagram, Twitter and other social media platforms, millions of people post their every move online. In fact, there are “apps,” such as Foursquare, that update a user’s location in real time. With this potentially unlimited record of a litigant’s daily behavior, practitioners are chomping at the bit to acquire such information.

Because the discovery of social media in litigation is so new, there is limited case law on the subject. As the case law emerges, however, one of the leading questions revolves around what information can be considered “public” and what information is “private”. Is a Facebook post public if the user has selected privacy settings which allow only a limited group of friends to read the post or see his or her pictures? 

When faced with this question, Florida courts have noted that generally social media content is neither privileged nor protected by any rights of privacy. Nevertheless, one party does not have a generalized right to rummage through information that another party has limited from public view. Examined in the light of ordinary discovery rules, this limitation makes sense.