Ortega-Guzman v. Sam's East, Inc.
Ortega-Guzman v. Sam's East, Inc.
2017 WL 11662212 (S.D. Fla. 2017)
August 22, 2017

Zloch Sr., William J.,  United States District Judge

Photograph
General Objections
Privacy
Social Media
Video
Failure to Produce
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Summary
The court ordered the plaintiff to produce discovery responsive to the defendant's requests for photographs taken of the plaintiff on the day of her injury, as well as information from her social media accounts before and after the accident. The court imposed two limitations on the requests, that counsel handle the material in a professional manner and that the requests for social media information reach back only one year prior to the accident. The court also noted that there is no reasonable expectation of privacy in one's social media accounts.
Additional Decisions
FABIOLA ORTEGA-GUZMAN, Plaintiff,
v.
SAM'S EAST, INC., Defendant
CASE NO. 16-81977-CIV-ZLOCH
United States District Court, S.D. Florida
Entered on FLSD Docket August 22, 2017

Counsel

Lee Gill Cohen, Colby Phillip Connell, Kanner & Pintaluga, P.A., Boca Raton, FL, Joseph M. Abdallah, Kanner and Pintaluga PA, Delray Beach, FL, for Plaintiff.
Annalisa Gutierrez, Suzette Luisa Russomanno, William Edwards, Jerry Dean Hamilton, Hamilton, Miller & Birthisel LLP, Gilda M. Chavez, Miami, FL, for Defendant.
Zloch Sr., William J., United States District Judge

ORDER

*1 THIS MATTER is before the Court upon Defendant Sam's East, Inc.’s Motion To Compel Better Responses To Discovery (DE 16). The Court has carefully reviewed said Motion, the entire court file and is otherwise fully advised in the premises.
 
In this slip-and-fall case, Plaintiff claims entitlement to damages for, among other things, “bodily injury” and “loss of capacity for the enjoyment of life.” DE 1-4, ¶ 15. Defendant propounded discovery seeking photographs taken of Plaintiff on the day of her injury, as well as information from Plaintiff's social media accounts before and after the accident. Plaintiff believes that discovery is irrelevant, overly broad, unduly burdensome, and invasive of her privacy. For the reasons that follow, the Court disagrees.
 
According to her Amended Complaint (DE 1-4), Plaintiff slipped and fell in one of Defendant's stores on June 10, 2015, due to a transitory substance on the floor. Plaintiff asserts a cause of action for negligence under Florida law, claiming she sustained “bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and loss of earnings, loss of ability to earn money and aggravations of a previously existing condition.” DE 1-4, ¶ 15.
 
To probe this claim, Defendant propounded several requests for production, four of which are pertinent here. In one, Defendant sought “Any and all duplicate original photographs taken of you on the day of the incident alleged in the Amended Complaint.” DE 16-1, at 7 (“Request No. 20). In three others, Defendant sought, “For each social/professional networking account Plaintiff is registered with currently,”[1] the following: (1) “account data (all postings including status, photo, and/or video) for the period of November 2, 2013, through present”; (2) “copies or screenshots of all photographs/videos associated with that account during the two (2) years prior to the date of loss”; and (3) “copies or screenshots of all photographs/videos associated with that account from the date of loss to present.” DE 16-1, at 8-9 (“Request Nos. 23, 24, & 25”). Plaintiff objects to each of these requests.
 
Upon an opposing party's request, Federal Rule of Civil Procedure 34 requires a party to “produce or permit the requesting party or its representative to inspect ... items in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Items subject to this Rule include “documents or electronically stored information—including writings ... photographs, sound recordings, images, and other data or data compilations.” Id. Requests for production must fall within the scope of discovery delineated by Rule 26. That is, the requested production must regard a “nonprivileged matter that is relevant to any party's claim and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
 
*2 Plaintiff's objections to Request No. 20 are curious. Plaintiff first objects that Request No. 20 is “overly broad, unduly burdensome, vague and ambiguous.” DE 16, at 2; DE 18-3, at 5. The Local Rules of this Court require that an objection to a request for production “state with specificity all grounds.” S.D. Fla. L. R. 26(e)(2)(A). Indeed, courts in this district routinely conclude that these boilerplate objections “are, by themselves, meaningless, and ... without merit.” Guzman v. Irmadan, Inc., 249 F.R.D. 399, 400 (S.D. Fla. 2008). Moreover, Request No. 20 only seeks photographs in Plaintiff's possession, custody, or control, depicting her on a particular date. There is simply nothing vague, ambiguous, over-broad or burdensome about that request. Plaintiff's objection that these photographs are irrelevant and outside the scope of discovery is similarly meritless. Plaintiff claims she suffered bodily injury, so any photographs of her on the date of her injuries—both before and after the injury—would tend to substantiate or refute the existence and intensity of those injuries. Plaintiff also claims that Request No. 20 invades the right of privacy that Florida law provides her. See Fla. Const. Art 1 § 23. But Plaintiff has not even attempted to explain why this Florida law would apply to discovery procedure in federal court.[2] See Hanna v. Plumer, 380 U.S. 460 (1965); Sibbach v. Wilson & Co., 312 U.S. 1 (1941); Erie R. v. Tompkins, 304 U.S. 64 (1938). And even if Florida law did apply to this discovery dispute, evidence that is relevant to the subject matter of the case “is fully discoverable.” Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003). Photographs documenting Plaintiff's injuries are plainly relevant.
 
Plaintiff's objections to Request Nos. 23, 24, & 25 also fail. As the Court has explained, boilerplate objections—like “overly broad, unduly burdensome, vague and ambiguous”—without more are not permissible in this district. Guzman, 249 F.R.D. at 400. Despite Plaintiff's contention, these requests seek relevant information. Plaintiff claims that her accident has deprived her of the “capacity for the enjoyment of life.” DE 1-4, ¶ 15. Having put her quality of life at issue, evidence that tends to demonstrate what Plaintiff's quality of life was before and after the accident is relevant and within the scope of discovery. Anderson v. City of Fort Pierce, Case No. 14-14095, 2015 WL 11251963, at *2 (S.D. Fla. Feb 12, 2015). Plaintiff has not adequately explained why her social media accounts would not reflect, in some way, her quality of life. But it seems plain that this evidence would do just that—comparison of photographs of Plaintiff's lifestyle before and after her accident would tend to show any changes in that lifestyle. And any statements Plaintiff made public (to those with access to her social media pages) would tend to reflect her present state of mind. Of course, “the only way for Defendant to know[ ] whether they are truly relevant is to see and review them.” Id. Plaintiff also contends that content from her social media is protected by Florida's right of privacy. Again, Plaintiff has not explained why this state law would apply to discovery proceedings in federal court. And even if it did, Florida courts have held that there is no reasonable expectation of privacy in one's social media accounts. Nucci, 162 So. 3d at 153-54. The Court will therefore order Plaintiff to produce discovery responsive to Request Nos. 23, 24 & 25 subject to two limitations. First, the Court expects counsel to handle this material in a professional manner. Anderson, 2015 WL 11251963, at *2. Second, Request Nos. 23 and 24 shall reach back only one year prior to Plaintiff's accident, which the Amended Complaint (DE 1-4) alleges occurred June 10, 2015.
 
*3 Accordingly, after due consideration, it is
 
ORDERED AND ADJUDGED that, except as limited by this Order, Defendant Sam's East, Inc.’s Motion To Compel Better Responses To Discovery (DE 16) be and the same is hereby GRANTED. Plaintiff shall have until noon on Friday, August 25, 2017, comply with Defendants Request For Production Nos. 20, 23, 24, & 25.
 
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 22nd day of August, 2017.

Footnotes
Defendant's requests provide examples of what it means by “social/professional networking account,” such as Facebook.
Plaintiff has not argued that Florida's right of privacy is an evidentiary privilege. See Fed. R. Evid. 501; In re Fink, 872 F.2d 84, 85 (11th Cir. 1989). Although Florida cases may apply that right to limit discovery, they are careful to distinguish the right of privacy from other evidentiary privileges. E.g., Nucci v. Target Corp., 162 So. 3d 146, 154 (Fla. Dist. Ct. App. 2015) (concluding that discovery materials were “neither privileged nor protected by any right of privacy”); Holland v. Barfield, 35 So. 3d 953, 956 (Fla. Dist. Ct. App. 2010) (concluding that the trial court's discovery order did not take proper account for the plaintiff's “constitutional right of privacy ... or privileges”). And Plaintiff apparently does not view this right of privacy as an evidentiary privilege because her objection does not utilize the procedures set forth in Local Rule 26(e)(2)(B) for asserting a privilege.