Information on social media sites provides information for the plaintiff and the defense during a case. (Photo: Shutterstock)

"Relevancy" of social media in discovery

The ease of posting information to social media outlets has led to a treasure trove of evidence for attorneys and clients alike. The information or "evidence" is being used in an array of cases, and is popular in auto accident and property damage claims, and workers' compensation cases.

Insurance companies are using the information gleaned from websites like Facebook to assist in the investigation of insurance-related coverage disputes and against potential or actual fraud. For instance, pictures, postings and general commentary can support the basis for strong fraud defenses in claims where the person's alleged physical ability and health contradict what is portrayed online.

Related: Make that Fitbit a lie detector

While insurance companies routinely use social media as a proven tool to investigate claims, it begs the question — how much of the claims representatives' own social media content is discoverable?

The current trend, especially with respect to insurance claims, is for social media information on the claimant to be used against him or her in the defense of prospective fraud. However, claims representatives should be aware that a state's rules regarding discovery apply to them as well. When discussing the discovery of social media, one must first understand the concept of "relevancy."

Electronically stored evidence (ESI)

Social media is considered "electronically stored evidence" (ESI). ESI is data or information that is kept in an electronic format. Aside from social media, ESI also includes data stored in places like text messages, web pages, emails, instant messaging systems, and media/audio files. Given the breadth of information stored electronically, it goes without saying that the scope of ESI is exceptionally broad.

The discovery of information from social media is subject to the same requirements as the discovery of any other type of evidence — it must be "relevant." The Federal Rules of Civil Procedure, which many states model their own discovery rules after, state that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense…"

However, information sought will generally not be discoverable if a privilege protects it. Two common privileges are attorney-client communications and work-product (i.e., materials prepared in anticipation of litigation). The federal rules define relevant evidence as having "any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action." Clearly, the threshold for what a party may discover is quite low.

Also keep in mind, social media is not afforded special treatment just because a person applies a privacy setting to it. Again, if the need for the information outweighs one's privacy concerns, it will more than likely need to be produced to the requesting party. In fact, many courts have found that parties do not have a reasonable expectation of privacy in information posted to social media due to the public nature of the site.

Thus, claims representatives must be cognizant of what they post on their personal accounts because what they post can have far-reaching implications.

The information on Facebook and other social media sites is still accessible even if it is behind a privacy wall. (Photo: Shutterstock)

"Nothing, just the normal stuff"

Consider this example. A firm was defending a first- and third-party auto claim, and opposing counsel requested the claims representative's deposition. On the date of the deposition, the attorneys for the defense noticed that opposing counsel had a stack of Facebook documents with him. They immediately took the claims representative aside to ask her what she had on her Facebook page that opposing counsel would find so interesting. She responded, "Nothing, just the normal stuff."

As the deposition proceeded, opposing counsel finally arrived at the Facebook documents. Opposing counsel continued to ask several questions about the claims representative's Facebook content despite repeated objections. The questions revealed that the claims representative had a young child at home, and that she ran an interesting side business selling certain products for adult "entertainment."

Embarrass & discredit you

As opposing counsel asked his questions, his intent became clear. His entire goal of questioning her on the Facebook content was to embarrass the claims representative and discredit her claims handling, morals, work ethic and more.

He asked how many claims she handled, including litigated claims. "Over 100, maybe 150," she responded. Opposing counsel then asked how much time she spent handling each claim; how much time she spent on her own business; and how much time she spent caring for her young child.

By the end of the deposition, opposing counsel had painted a picture of an overworked claims representative who did not have enough time in a day, and whose focus was not on handling her insurance claims. Rather, the majority of her time and effort went to her child, outside business, and everything else besides doing her job as a claims representative. Therefore, she could not possibly have spent adequate time adjusting the claim at issue.

While defense counsel did not think the opposing counsel's questioning was relevant, they did have to consider the implications, since it was completely possible that the judge would allow the testimony and Facebook content at trial. Counsel's strategy was to prepare and file a protective order to keep the social media inquiries out, however, the case was resolved before the social media posts became a major issue.

Insurance professionals may want to consider having professional and personal social media sites. (Photo: Shutterstock)

Staying proactive

There are several actions claims professionals and their attorneys should consider to safeguard the effects of social media on the discovery process. Most importantly, claims representatives must exercise caution when posting to social media because their posts can be exposed during the litigation process. Social media content should be limited, and everything should be kept as private as possible. Claims representatives should also consider keeping separate profiles — one for work and one for play.

When social media concerns arise, it is the attorney's responsibility to educate the court on whether or not the information sought is "relevant" to the issues being litigated. Attorneys should stay alert, objecting where necessary, and file protective orders to prevent potentially damaging social media content from affecting their case.

Courts are generally not keen on fishing expeditions into one's personal life — it is not a free-for-all. In a heated dispute over the production of social media content, a party will need to show the court what evidence he or she already has, and that if permitted greater access, will lead to more relevant findings. It follows that not everything is discoverable, but the more accounts are kept private, the harder it will be for a requesting party to lay a foundation for its production.

Andrea M. Mannino ([email protected]) and Lauren A. Frederick (lauren.frederick@ceflawyers.com) both are automotive liability and coverage litigation attorneys at Collins Einhorn Farrell PC. Mannino has extensive experience working with general liability, automotive litigation (primarily in the area of no-fault claims) and premises liability matters. Frederick's experience also includes work with catastrophic claims and drafting coverage opinions.