Subrogation Claims: Using Search Engines & Social Media

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1 Subrogation Claims: Using Search Engines & Social Media Presented By: Andrea Cortland Attorney, Cozen O Connor

2 What are Search Engines? Search engines = software systems that are designed to search for information on the internet Purchased from Shutterstock

3 What is Social Media? Social media = media designed to be disseminated through social interaction Purchased from Shutterstock

4 The Growth of Search Engines & Social Media As of 2013, Facebook has 1.15 billion+ total users 350 million photographs are uploaded to Facebook every day Twitter has 500+ million total users 400 million tweets are sent per day Instagram has 130+ million total users More than 16 billion photos are already uploaded

5 But Is This Really That Important for ME?

6 Common Search Engines (and some uncommon ones, too!) The usual suspects: Google Yahoo Bing Some you may not know: Duck Duck Go Mahalo Dogpile Ask.com

7 Reverse Image Searching Reverse image searching = contentbased image retrieval ( CBIR ) using a sample image Can discover content that is related to a specific sample image, manipulated versions of the image, etc. Try: Google Search by Image Tineye (www.tineye.com) Google Goggles (app)

8 How Do I Navigate This Stuff?! Search with and without quotation marks Search using short phrases as well as large text strings Keep multiple tabs open so you don t lose your searches If you get lost on big pages, remember Control + F Look up search operators on the internet Don t be afraid to play around a bit!

9 Aircraft Maintenance

10 Purchased from Shutterstock Social Media (Just a few examples )

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23 Blogs & Podcasts Blogs = a discussion or informational site published on the web and consisting of discrete entries ( posts ) typically displayed in reverse chronological order Podcast = a digital episodic series of audio, video or PDF files subscribed to and downloaded through web syndication or streamed online to a computer or mobile device

24 Using Search Engines & Social Media in Investigation Photography is truth. Jean-Luc Godard, French film director, 1960 Purchased from Shutterstock

25 Type of Information Available Photos and videos indicating the condition of real property or personal property Photos and videos of a loss as it is occurring People s statements regarding a loss People s statements regarding causation and more!

26 Uses of Information Identify facts otherwise unknown Determine the severity of a loss Assist with providing causation Detect fraud Provide visuals for use during deposition or trial Establish condition of property at finite point in time

27 Subro Example: YouTube

28 Subro Example: YouTube (again)

29 Subro Example: Twitter

30 Investigation Tips Employ many of the same tips for navigating search engines Dig, dig, dig Use various search operators and terms Immediately save what you find! Users often remove content after posting it especially after submitting an insurance claim or after litigation is commenced! Take screen shots to capture date and time

31 Use of Social Media in Litigation Issues associated with using social media in litigation include: Discoverability of social media information Relevance Obtaining information Actual production of information Authentication Spoliation Exclusionary rules Ethical considerations

32 Discoverability of Social Media Information Discovery rules in the U.S. are intentionally fairly liberal Generally, parties can discover any documents or information that are relevant to any claim or defense

33 Relevance Evidence does not need to be admissible to be relevant It only needs to be reasonably calculated to lead to the discovery of admissible evidence Must have a tendency to make the existence of any fact that is of consequence more or less probable

34 What is Relevant? Depends on the facts of the case Consider: Who added the content? Who had access to the wall, blog, etc.? When was the content created? When was the content added? Was any content deleted?

35 Relevance: A Dilemma Users can often designate information as private Dilemma: how can you demonstrate that the user s content is relevant if you don t know what s there? Solutions: Leverage public portions of the user s account Narrowly tailored discovery requests

36 Obtaining Social Media Information Party discovery requests Motion to compel if necessary Account holder authorization to release social networking site information Non-party subpoenas to social networking site Expert assistance Depositions

37 Actual Production of Social Media Information In camera review Forced disclosure of password Direct download Protective orders Not forced friending Purchased from Shutterstock

38 Authentication Generally Fed. R. Evid. 901(a) provides that [t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

39 Authentication of Social Media Information No uniform rule Depends on the jurisdiction Some possibilities: Testimony of a person with knowledge Comparison with authenticated exemplar Distinctive characteristics Not: Simply obtaining information online Self-authenticating

40 Spoliation Spoliation = intentional alteration or destruction of a document that could have been used as evidence in litigation Can result in sanctions or an adverse inference Consider whether user: Deleted a social media account? Deleted a specific post or photograph? Deleted the content prior to or after the commencement of litigation?

41 Exclusionary Rules Relevant hearsay exceptions Present sense impression Then-existing mental, emotional or physical condition Excited utterance Non-hearsay Party admissions Evidence of a state of mind Effect on listener Prior inconsistent statement

42 Ethical Issues Public vs. private content on social media sites and personal accounts Deceptive friending of an insured, plaintiff, or adversary Social media research of jurors during trial Altering information Duty to preserve information

43 Key Take-Aways There is TONS of information available online which can be found using search engines and social media Time is of the essence Properly preserve any information found so it can be authenticated down the line Go public, or go to court

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45 Contact Information Andrea Cortland Cozen O Connor 1900 Market Street Philadelphia, PA (215)

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