Using Social Media to Defend Workers Compensation Claims

Transcription

1 Using Social Media to Defend Workers Compensation Claims Presented By: Nicole Tackett Managing Workers Compensation Attorney Vernis & Bowling of Charlotte 4701 Hedgemore Drive, Suite 812 Charlotte, NC Tel: (704)

2

3 Types of Social Networking Facebook LinkedIn Twitter Instagram Vine SnapChat Periscope Pintrest Blogs, Reviews, etc.

4

5 Can You Use Social Media to Investigate a Workers Compensation Claim?

6

7 MOST IMPORTANT RULE No Contact

8 Friending On Facebook Unethical for a lawyer, private investigator or third party to Friend a litigation witness in order to gain access to Facebook page to find impeachment material.

9 Limitations on Searches Public information ONLY What if people are already friends? What about friends of claimants? Can you ask a friend of the claimant to tell you what the claimant is posting?

10 Spokeo Spokeo is a social network aggregator website that aggregates data from many online and offline sources (such as phone directories, social networks, photo albums, marketing surveys, mailing lists, government censuses, real estate listings, and business websites). This aggregated data may include demographic data, social profiles, and estimated property and wealth values. In 2010, Spokeo released Username search. Spokeo username search scans across social networks, blogs, photo albums, dating sites, music networks, video sites, ecommerce stores, and other web services in real-time to help find online profiles with similar usernames. All data collected by Spokeo is publicly accessible from its original sources.

11

12 Four Uses of Social Networking Because of the vast amount of personal information they contain, social networking sites can provide useful tools for investigating a claimant. Four Uses of Social Networking Locations Status Known Associates Photographs and Videos

13

14 Status Social Networking sites can provide information about a claimant s employment status, work history and educational background.

15 Known Associates One of the main functions of a social networking site is to build a claimant s social network. These networks are generally available to public users. As a result, a user can see who a claimant is related to, who a claimant is in a relationship with and who a claimant lists as a friend.

16 Photographs and Video Social Networking sites allow users to share photographs, video and other media with persons to whom they are connected or maybe even with the general public. Viewing the photographs, video and other media connected with a claimant can give insight into and more importantly, provide documentary evidence of the claimant s activities.

17 Benefits of Utilizing Social Networking 1. Information Gathering. Can provide a useful platform for gathering information about a claimant, witness or other relevant person. 2. Evidence. The information obtained from social networking sites can be used as evidence in litigation. 3. Settlement Leverage. The information is often very private and as is the case with negative information can be personally embarrassing.

18 Using Social Media as Evidence in Court There is friction between the concepts of privacy, free speech and accountability Generally, if something is posted in a public forum, the courts will see it as fair game (provided all local ethics, evidence and litigation rules are followed)

19 Social Media at the NCIC Sedgwick v. Kindred Health: Plaintiff claimed her injuries prevented her from enjoying life. Defense presented Facebook postings of her riding roller coasters. Spain v. Spain s Mobile Home Movers: Plaintiff claimed he could not work, but Facebook pictures showed him repeatedly advertising cars for sale Miller v. PGT Industries: Plaintiff claimed her workplace injury prevented her from earning pre-injury wages in her home based business. Facebook posting: my homebased business has changed our lives financially 4EVER NO MORE WORRIES.

20 Using Social Media as Settlement Leverage Sometimes evidence will be difficult to admit in court Sometimes evidence is not sufficient to prove fraud or misrepresentation In NC, exhibits must be presented to the other side prior to hearing

21 Start Early As soon as an employee files a claim, Search internet for Claimant/ Plaintiff name to determine whether they have social media accounts Print and preserve date in order to lay foundation for monitoring changes. Share information with insurer and defense counsel

22 Discovery Courts tend to allow discovery of social network user profiles and deflect the privacy arguments offered to limit the discovery. Relevance is an issue Discovery requests need to be specific

23 Changes Risk that claimants/litigants close accounts or delete posts to avoid discovery ASK! For any accounts listed above, please describe any changes you have made to your privacy or other account settings, and describe any content which you have deleted or erased after [enter relevant date].

24 The Other Side Also Using Social Media Opposing counsel looks up insureds as well as claims adjusters Claimant can use social sites to document disability NC Bar Proposed Ethics Opinion # 5: advises lawyers must advise clients about the legal ramifications of social media use

25 Any Questions?