YouTube And P&C Damage: How Social Media Can Make Or Break Your Subrogated Action

In that case, it is very likely that your insured or an observer may have pulled out a cell phone, recorded a video clip and posted it on YouTube. Check it out: Simply enter the loss date, location and a one-word description into YouTube's search engine, and you may discover valuable evidence that can provide crucial insights into the loss.

Although YouTube videos cannot be directly downloaded, there are simple ways to preserve evidence for use in litigation. There are many websites that will perform a free online conversion to a downloadable file in a format that you can save on your hard drive (see: http://www.flvtomp4.net/).

Likewise, you can check photo-sharing sites such as Flickr for still images that might help your cause.

Witness-Exposure Program

Social-media sites also can help insurers identify witnesses to a loss event. For example, beneath each YouTube video is an area where both the uploader and viewers can post comments. This is where comments such as the following will often appear:

"That truck that sits on I-70 in the background facing west is mine. I was sitting there watching the blaze. This rig burned for nearly 7 hours that I'm aware of."

As illustrated above, in many cases, the comments are left by individuals who claim to have witnessed the loss. Clicking on the name associated with a posted comment will bring up the commentator's YouTube channel, where it is possible to send messages to that person, which may allow legal counsel to request these witnesses to voluntarily provide evidence.

Depending on the circumstances, it may also be possible to obtain a subpoena that will compel YouTube to identify the e-mail address and other information associated with the poster of the comment.

Using Social To Spot Product Defects

Product-liability lawyers are now starting to mine social-media sites to identify alleged product defects and evidence of notice for purposes of statutes of limitations, warranty and fraud claims.

Consumers regularly will blog or tweet about products and brands. As a consequence, it is becoming increasingly common for lawyers to cite Internet allegations in filed complaints, incorporating consumer postings into legal briefs as impressionistic evidence. Evidence of online consumer complaints can affect the question of whether a product is defective.

Additionally, the amount of damages awarded in a case can turn on what a manufacturer knew, or should have known, at a given time—and this may be established by consumer complaints posted on social media websites.

Integral Part of the Process

The impact of social media in the courtroom cannot be ignored. Social media is influencing not just how we communicate, but how lawyers litigate. As noted by Judge Fred Ferguson in the recent Canadian case of Sparks v. Dubé: "[Social media] sites will routinely be consulted in the future by opposing parties in litigation and will become an integral part of the disclosure process."

Courts and litigants are increasingly relying on evidence secured from social networking sites to make or break their cases. As such, it's critical for subrogation professionals to search for ways that social media can add value to their subrogation action.