A photo posted on a Facebook page of a young man named “Tom” on skis is nothing out of the ordinary. Hundreds of thousands of photos just like it are splattered all over the Internet. The exception in this case is that this man claimed to be a robust, healthy, active young man before a car accident caused by your insured a year before this particular photo was taken supposedly caused neck and back injuries that severely hampered his active lifestyle.
Wouldn’t you have loved to be armed with the picture of “Tom” on his skis when you entered settlement negotiations? How much less would you be willing to pay if you knew that the injured person was zooming down the slopes, running races, playing golf, or lifting weights following the accident? This might be a good time to re-examine your reserve.
The explosion of online “social media” can make this type of valuable information readily available from your desk—that is, if you know where and how to look for it.
In Tom’s case, his lawyer has sent you a demand letter in which he details how before the accident his client skied, played tennis, went dancing, did all the heavy work around the house, and coached his kids’ soccer teams in his spare time. But now, because of your insured‘s negligence, the lawyer asserts that his client has been restricted to a sedentary lifestyle. Even worse, his income has taken a dive, because he can’t do the physical work his thriving landscape business requires.
The Internet has been around long enough that most claims handlers now use it routinely to check everything from court dockets to statistical information about the venue of a lawsuit, but “social media” can often provide a much more detailed and candid look at a claimant than can be found in those dry statistics. At the very least, these sites can tell you a little bit more about the type of person with whom you are dealing. In the best case, you might find the incriminating photo or other information that completely contradicts the claims being presented before a settlement is reached.
Information available on these types of websites can include not only photos such as “Tom” doing the double black diamond trails, but also comments from his friends (for example, “can’t wait for skiing this weekend!”), current status reports from the claimant himself (“having a great time on the slopes!”), and even videos (maybe showing the claimant and friend après ski).
The most popular of the “social media” or “social networking” sites is Facebook, which was founded by Harvard undergraduate students in 2004. In July 2010, Facebook boasted 500 million users. Facebook, Inc., now based in Palo Alto, Calif., employs some 1,700 people and reports projected revenues of more than $1 billion for 2010.
Facebook allows users to post photographs and personal information, write messages on other users’ “walls,” and announce their status, or what they are doing at that moment. Depending on the user’s privacy settings, this information may be restricted to “friends” whom he or she approves, or made more widely available to friends of friends or even the general public.
Other similar, but less popular sites include Myspace and Friendster, while Linked-In is more of a business networking site. Twitter provides short (140-character or less) bursts of instant news called “tweets” sent to a member’s “followers.” YouTube, founded in California in 2005 and now owned by Google, is a video exchange site that includes everything from TV commercials, professional music videos and movie segments, to grainy personal home videos. Craig’s List, which has been on the Web since the mid-1990s, is the online version of a newspaper’s classified ads, which allows users to list personal ads, jobs, and sales among other things.
Although not technically “social media,” other online resources helpful for investigating a claimant are their own personal web pages and blogs and the websites of any organizations to which they might belong. (For the uninitiated, a “blog,” short for “web log” is an online diary.) These may provide documentation of a person’s regular activities, which could be helpful in evaluating the effects, if any, of his injuries.
These online resources can provide a veritable treasure trove of information about claimants and witnesses. You might find that a claimant who says he can’t walk is boasting via Twitter about having just completed a 10-mile training run. A Facebook photo could be useful if you need to conduct surveillance. (If you are fortunate enough to catch a claimant in a blatant misrepresentation of his injuries, then you probably won’t need surveillance.) A video on YouTube of a supposedly injured person doing any physical activity could mean the difference between a win or a loss, and a person’s business activities on Linked-In may suggest he has exaggerated his economic claims.
In addition to learning more about your claimant, you may be able to locate others who can be helpful to your investigation. One way you might do this is by uncovering the identity of the claimant’s friends or business acquaintances who might be frank about his condition. Sometimes plaintiffs exchange information on their blogs or pages about their accidents, or even their lawsuits.
Imagine this exchange on the Facebook “wall” of a claimant: “How’s your lawsuit going?” asks a friend. “Pretty good,” replies the plaintiff. “My lawyer says I’m going to get a lot of money.” Although this may sound farfetched, it does happen.
You can usually locate a person’s blog, Facebook, and other relevant pages with a simple run of their name through a search engine such as Bing or Google. It’s even possible to do a search for the person at a specific website to see if he or she is a member.
Let’s return to our mythical claimant named Tom. When his lawyer describes the activities he allegedly can no longer do, check those as well. If the attorney says Tom has been forced to give up his passion for skiing because of the accident, then Google “ski clubs.” With a simple query, you might navigate to a database providing a list of ski clubs around the world. Then look for one near Tom’s hometown to check whether he is a member. If Tom claims to have given up coaching his kids’ soccer teams, then check the soccer club’s website, or online soccer bulletin boards.
If you are able to access Tom’s Facebook page or his blog and you find an entry such as: “In car accident yesterday. Not hurt. Off on ski trip,” then just imagine how helpful that information would be a year later when he testifies in the deposition that his skiing has been severely limited since the accident. Or, perhaps his Linked-In profile boasts of record earnings for his landscape business last year, all while he tells you he has a wage loss claim, access to the network to prove otherwise could be helpful. Conversely, sometimes these pages could validate a claim, as when Tom writes on his ski blog that he’s missing the season because of an accident.
Not everything online is public. Certain websites or website pages might be available only to those approved by the creator or owner of the page. On Facebook, for example, these are known as “friends,” or on Linked-In they are “connections.” Many users grant access to their pages to anyone who asks, but before you go asking a claimant to be your Facebook friend or posting a comment on his blog, make sure you are familiar with the insurance laws in the claimant’s state which might prohibit contact with a claimant who is represented by counsel.
If such contact is prohibited, then don’t even have someone else try to “friend” the person for you. Often, however, some of a Facebook page is available to anyone who looks, and sites such as blogs are usually open to anyone who finds them. Investigation becomes easier when a claim is in suit because it is then possible to have discovery, which can be enforced by court order. In that case, you might have defense counsel obtain in written discovery details of all activities in which the plaintiff participates, and of his work if there is a claim for wage loss or loss of earning capacity. Ask counsel to follow up in depositions. If you are taking a proactive role in the investigation during litigation, then you can follow up on these, but the advantage of the attorney doing it is that it is more likely to be protected as work product.
If information about Tom and his ski trip or the like can be obtained from public sources, then it may not have to be revealed by defense counsel in discovery and may be used as rebuttal in trial, or if settlement strategy dictates, in mediation or settlement conferences.
Whether a defendant may compel a plaintiff through discovery to provide information needed to access his Facebook or MySpace pages—such as a log-in and password—remains to be seen, but as courts become more conversant with these sources of information, it seems likely that they will be made available subject to the same rules of relevance and privilege as older media outlets.
While the Internet and jet travel may have “shrunk” the world, the former has greatly expanded it in terms of opportunities for a more thorough and timely investigation of a claim.
Know the Law Before You Snoop
There are ways of obtaining non-public information as well, although the element of surprise will be lost. Ethical rules will most likely prohibit your counsel or anyone on their behalf from “friending” a represented claimant on Facebook or otherwise communicating with a plaintiff through a social networking site. At least one federal court in California, citing the 1986 Stored Communications Act, 18 U.S.C. §2701, et seq., has recognized the standing of social networking sites to move to quash subpoenas for members’ pages. However, Facebook’s policies advise members that the company may disclose information in response to a subpoena if it has a good faith belief that the law requires it.
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