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 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.
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.
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 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.