News & Events

Smile! You’re on the World Wide Web!

Wikipedia informs me that original broadcasts of Candid Camera appeared as late as 2004, but I don’t believe it.  It was too much a part of my long-ago childhood for me to accept that it was still running well after my hairstyle began to match Alan Funt’s.  But what brought that master of good, clean fun to mind was a decision handed down the other day in a Florida federal court, Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759 (M.D. Fla. Feb. 21, 2012).  The defendant in Davenport requested, in discovery, that plaintiff produce “All photographs posted, uploaded, or otherwise added to any social networking sites or blogs, including but not limited to Facebook.com, Myspace.com, Twitter.com . . . since the date of the accident alleged in the Complaint.”  Passing over the fact that the request, read literally, would include all photographs of anything, posted by anyone, the Court, noting that “plaintiff’s physical condition is at issue in this case,” granted a modified version of the request:

Thus, the Court will order Plaintiff to produce any photographs depicting her, taken since the date of the subject accident, and posted to a SNS, regardless of who posted them. . . . Since, under the applicable discovery rule, Plaintiff is obligated to produce only those photographs in her “possession, custody, or control,” see Fed.R.Civ.P. 34(a)(1), it is likely that Plaintiff will need to produce only photographs that she posted or in which she was tagged.

Without speculating on what this order might bring to the defendant in Davenport, it takes little effort to imagine how productive it might be in other cases.  And here’s the real point: back in the golden days of Candid Camera, anyone wishing to avoid having an embarrassing moment captured on film merely had to be on the lookout for Mr. Funt.  The chances of anyone else making a permanent visual record of indiscretion were, in any ordinary situation, low enough to be discounted entirely.  Today everyone has a camera, ready at hand, at almost every moment.  And with the cost of film and developing reduced to zero, photos are taken all the time.  And those photos, rather than moldering in an album (or, more likely, a shoebox), very often go straight to the eyes of the world.  And thanks to the magic of “tagging,” many of them can be located automatically.

The litigator who fails to pursue these images as zealously as the marvelous Mr. Funt pursued his quarry will be doing his client a real dis-service.

Robert ("Bob") M. Frey