Investigating Workers Compensation Claims in the Age of Social Media

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2 Workers Compensation Statistics According to the National Academy of Social Insurance, premium costs for WC coverage in the U.S. in 2010 reached $71.3 billion. NASI also reported that $57.5 billion was paid out in benefits on WC claims in the U.S. in 2008 and $58.3 billion in According to Bureau of Labor statistics in 2010, nearly 3.1 million nonfatal workplace injuries were reported in the United States. More than 1.5 million of the reported injuries were of a more serious nature resulting in missed work, job transfers, and or permanent physical restrictions. Employment Statistics According to the Department of Labor s Bureau of Labor Statistics, there were just over 133 million Americans employed in August of Just under 133 million Americans were employed at the end of Just under 131 million Americans were employed at the end of

3 2011 U.S. Department of Labor s Workforce Breakdown by Age year olds: 16,008,000 employed year olds: 30,537,000 employed year olds: 30,270,000 employed year olds: 32,867,000 employed year olds: 22,186,000 employed 65 and over: 6,647,000 employed Social Media Statistics Social Networking Site Usage According to Edison Research 56% of Americans have a profile on a Social Networking site 55% of Americans age have a profile on a Social Networking site. 22% of Americans use social networking sites several time per day. 3

4 Types of Social Media MySpace Overview Social networking site established in August, In 2006, MySpace was the top social networking site in the United States. MySpace fizzled when other social networking sites, including Facebook came to prominence. MySpace has been revamped and was relaunched in September, 2012 Statistics 25 million users 50 million users left since February of 2010 Types of Social Media (cont.) Facebook Overview A social networking service launched in February Users create a personal profile, add other users as friends, and exchange messages and other types of media including photographs and video, including automatic notifications when they update their profile. Statistics Has more than 800 million active users 54% of Facebook members have used the social network via mobile device 33% of Facebook members use a mobile device as their primary way to access Facebook 23% of Facebook users check their account five (5) or more times a day 3.5 billion pieces of content shared per week 4

5 Types of Social Media (cont.) Twitter Overview An online social networking and micro blogging service that enables its users to send and read text based messages of up to 140 characters, known as "tweets". Statistics 100 million active users 76% of Twitter users post status updates 55% of Twitter users access the platform via mobile device Types of Social Media (cont.) YouTube Overview A video sharing website created in February 2005, on which users can upload, view and share videos. Statistics 800 million unique visitors to YouTube each month 72 hours of video are uploaded to YouTube every minute 3 hours of video is uploaded per minute via mobile device YouTube has compiled more than 8 million reference files that consists of more than 500,000 hours of content 500 years of YouTube video are watched everyday on Facebook 700 YouTube videos are shared on Twitter every minute 5

6 Types of Social Media (cont.) Instagram Overview A photo sharing program and social network launched in October, that enables users to take a photo and share it with other users they are connected to on a variety of social networking services. Statistics 50 million users in just two (2) years 300 million photographs are uploaded each day on Facebook 1 billion photos taken with the application 58 photographs uploaded every second Types of Social Media (cont.) LinkedIn Overview A social networking site launched on May 5, 2003, that is mainly used for professional networking. Statistics World s largest professional network 175 million members worldwide 2 new members per second 6

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11 Social Media Investigation and Discovery Public Information If information is posted on a social networking website for everyone to see, attorneys should be able to freely access this information on their own without any claim of privacy. California Appellate Court found that the plaintiff did not have a reasonable expectation of privacy in an article she posted on MySpace because it was "available to any person with a computer" and thus open to the public eye. Moreno v. Hartford Sentinel, 172 Cal. App. 4th 1125 (2009). Maryland Court of Appeals noted that "[t]he act of posting information on a social networking site, without the poster limiting access to that information, makes whatever is posted available to the world at large." Independent Newspapers, Inc. v. Brodie, 966 A.2d 432, 438 (Md. 2009). 11

12 Social Media Investigation and Discovery (cont.) In 2010, a Pennsylvania court compelled interrogatory responses disclosing the plaintiff s social networking usernames, logins and passwords, relying on evidence from the public portion of plaintiff s profile that suggested additional relevant information might be in the private sections. See, McMillen v. Hummingbird Speedway, Inc., No CD (C.P. Jefferson, Sept. 9, 2010). In 2011, a Pennsylvania court held that a person who voluntarily posts photos or information to a social networking profile has no reasonable expectation of privacy in those posts that would prevent their discovery and ordered the plaintiff to turn over his usernames, log in names, and passwords for all MySpace and Facebook accounts. See, Zimmerman v. Weis Markets, Inc., No. CV , 2011 WL (Pa. Com. Pl. May 19, Social Media Investigation and Discovery (cont.) Private Information Ethically, attorneys cannot attempt to friend a party or a witness in order to access information posted on social networks that is protected by privacy settings. See, Philadelphia Bar Association Professional Guidance Committee Opinion (Mar. 2009); see also Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion Information posted on social networks that is protected by privacy settings is subject to disclosure in litigation via discovery requests, including Interrogatories and Requests for Production. 12

13 Social Media Investigation and Discovery (cont.) Again in 2011, a Pennsylvania court agreed to review a plaintiff's Facebook account in order to determine whether there was information subject to discovery in a case relating to the plaintiff's personal injury claim following a motor vehicle accident. The plaintiff was directed to allow the court to access his Facebook and MySpace accounts in order to determine which parts of his social media accounts are subject to discovery as it might shed light on his health and well being at the time of the accident in question and thereafter. See, Offenback v. L.M. Bowman, Inc., No. 1:10 CV 1789, 2011 WL (M.D. Pa. June 22, 2011). Social Media Investigation and Discovery (cont.) A Judge in the Middle District of Tennessee offered to temporarily create his own third party Facebook account in order to conduct an on camera review of private Facebook content. Barnes v. CUS Nashville, LLC, No. 3:09 CV 00764, 2010 WL (M.D. Tenn. June 3, 2010). Another Pennsylvania Court, after considering relevancy and breadth of the discovery request, privilege and privacy considerations, and the application of the Stored Communications Act, ruled that the plaintiff s Facebook information was discoverable as being relevant and not privileged and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days giving the defendant a 21 day window to inspect the plaintiff s Facebook profile (after which she was allowed to change her password). See Largent v. Reed, 2011 WL (Pa. C.P. Franklin Co. November 8, 2011). 13

14 Private Information (cont.) A plaintiff s failure to produce discoverable information from her MySpace page could be grounds for imposing sanctions. Mackleprang v. Fidelity National Title Agency, 2007 WL (D. Nev. 2007). A court may conduct an in camera review of a plaintiff s social network profile to determine if there is any relevant evidence to be discovered. Bass v. Miss Porter s School, 2009 WL (D. Conn. Oct. 27, 2009). A New York Court held that a personal injury defendant had the right to discover the plaintiff s Facebook and MySpace pages and accounts, including private posts and previously deleted information. Romano v. Steelcase, Inc., 30 Misc. 3d 426, N.Y.S. 2d 650, 654 (N.Y. Sup. Ct. 2010). Private Information (cont.) A Colorado court held that civil subpoenas to Facebook and MySpace were enforceable and entered an order compelling the plaintiff to execute consents allowing the social network sites to produce information sought via subpoena. Ledbetter v. Wal Mart Stores, Inc., 2009 WL (D. Colo. 2009). The U.S. District Court for the Southern District of Indiana held that, even thought an individual has designated certain information as private on a social networking site, they should be required to provide information in response to a valid discovery request as long as the information requested is relevant and non privileged. EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010). 14

15 Private Information (cont.) A Florida court ordered the plaintiff to produce any photographs depicting her taken since the date of her accident and posted to a social media site, including those uploaded by the plaintiff and photographs uploaded by others in which the plaintiff appeared. Davenport v. State Farm Mutual Automobile Ins. Co., 2012 U.S. Dist. LEXIS (M.D. Dist. Fla. 2012). Social Media Discovery Avenues Interrogatories A formal set of written questions propounded by one party to another that are required to be answered under oath. State whether you are a member of any social networking sites or blogs, including but not limited to, Facebook, MySpace, Twitter, Google Plus.com, or any other similar websites. If so, please identify the user name, address, login, and/or password to those social media accounts maintained by from January 2007 through the present. If you have multiple accounts, please provide the requested information for all accounts. 15

16 Request for Production A legal request for documents, electronically stored information, or other tangible items that pertain to the subject matter of the lawsuit Please produce any and all photographs or videos posted, uploaded or otherwise added to any social networking site or blogs, including but not limited to, Facebook, MySpace, Twitter, Google Plus, or any other similar websites, which depict you, whether uploaded by you or uploaded by others, since the date of the accident. Please produce any comments, personal status updates, communications, messages, postings, or any other activity on any social networking site, including but not limited to Facebook, MySpace, Twitter, Google Plus, or any other similar websites, which detail or discuss any hobbies, activities, or travels you have engaged in since the date of the accident. Request for Production (cont.) For each Facebook account maintained by you, please produce your account data for the period of January 2007 through present. You may download and print your Facebook data by logging onto your Facebook account, selecting Account Settings under the Account tab on your homepage, clicking on the learn more link beside the Download Your Information tab, and following the directions on the Download Your Information page. 16

17 Social Media Discovery Avenues (cont.) Subpoenas Social network services will object on the grounds that the production of private information would violate the Stored Wire and Electronic Communications Privacy Act ( SCA ). The SCA prohibits an internet company from disclosing a user s private information unless the user provides consent. Courts have generally held that a party cannot obtain social media data by merely sending a subpoena. Authorization and Release A California court held that [w]here a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions. O Grady v. Superior Court, 139 Cal. App. 4th 1423, 1446 (2006). Voluntarily or by order of the court, a party to litigation can execute a consent and release that most social networks will accept to release social media data. A form consent authorization is detailed below: I, Plaintiff, being duly sworn, on this 2nd day of October, 2012, do hereby state the following: I have one or more profiles on Facebook.com. The URLs / Friend IDs are: I understand that the law firm of Carr Allison is conducting discovery in the civil matter pending in the Circuit Court of Jefferson County, Alabama, CV XXX, Plaintiff v. Defendant, and has requested that I grant consent to authorize the law firm of Carr Allison to access, request, receive, review, copy and otherwise utilize, as they deem appropriate, the following information from the above profiles: 17

18 Digital copies on Compact Disc of all front end content, including photographs, videos, blog entries, messages, all friends comments, comments to friends, and any and all other postings that appear or have appeared in the past on the Facebook.com web page belonging to Plaintiff, Friend ID:. I hereby authorize Facebook.com to provide to any agent of the above referenced firm, the above specified information associated with my identified Facebook.com profiles/accounts. The information shall be sent to: CARR ALLISON 100 Vestavia Parkway Birmingham, Alabama Telephone: (205) The following information should be used to verify my identity: address for account: Password for account: Date of birth for account: Zip Code for account: 18

19 Pursuant to this Consent, I waive any claims against, indemnify and hold harmless Facebook.com, its affiliates, and their respective directors, officers, agents, and employees from and against any claims, damages or expenses relating to or arising from, in whole or in part, the disclosure of such information, records and data. I have not been promised anything in exchange for providing this consent and authorization. In witness whereof, the undersigned makes the above statements under penalty of perjury. Practical Advice for Conducting Social Media Investigation and/or Discovery Keep It Simple Stupid Start out with a search for information that is publicly available via search engines and social media sites. Avoid Ethical Pitfalls Do not pretend to be someone you are not or ask someone working on your behalf to do so in order to obtain access to private information on social media sites. Its Just a Base Once you have completed your initial social media investigation and have obtained relevant public information that support your position and/or defenses in a case, pursue formal discovery of additional private information directly from the plaintiff and/or the social media sites. 19

20 This is Not a Fishing Expedition To avoid an adverse ruling from the court or administrative board, be sure that your social media discovery requests are relevant and limited in scope. Know When to Hold Em, Know When to Fold Em Be sure to get the most bang out of the results of your social media investigation. Just like surveillance, it may be more prudent to use your social media investigation results in the early resolution stage of the case to obtain a more favorable resolution to your claim than to hold it for trial where a judge or board may discount the evidence. Be Sure that Dog Will Hunt If you are going to the time and expense of mining social media, don t embarrass yourself at trial by not being able to get the damning postings, photographs, and/or videos into evidence by overcoming objections as to relevance, authenticity, hearsay, and/or the balance between probative value and unfair prejudice. 20