When can a person be in their own home, alone, with the windows and doors closed and have a limited expectation of privacy? It may sound like the beginning of law school exam question, but this is something we must think about daily. The answer is when that person is using social networking websites. With the surge of social networking websites, including Facebook and Twitter, it is easier and less expensive to obtain surveillance on claimants in workers’ compensation cases than ever before. What could be more credible than the claimant’s own admissions, in writing? Nothing.
Within the past five years, United States District Courts in New Jersey, California, and Ohio have all noted that there is no reasonable expectation of privacy when an individual chooses to disclose information, even on websites. Beye v. Horizon BCBS of NJ, 06-5337, 2007 U.S. Dist. LEXIS 100915 (D.N.J. December 14, 2007); Moreno v. Hanford Sentinel Inc., 172 Cal.App.4th 1125, (Cal.App. 5 Dist. 2009); Dexter v. Dexter, 2007 Ohio 2568, (Ohio App. 11 Dist. 2007). Notably, the user agreements on many social networking sites, such as Facebook, clearly state that disclosed information “may” become publically available. For these reasons, the courts have permitted the use of information found on social networking sites in cases where there is a relationship to the litigation, despite privacy concerns and objections.
Unfortunately, many times these sources are overlooked while litigating cases and are only searched when outside investigators are hired. But this investigation could easily take place without outside involvement. Many times a simple search on Google can provide enough information to start a search.
Be warned that there are precautions that must be taken. One cannot entrap the claimant by sending him connection requests. Doing so, even if the claimant accepts the request, may be seen as an infringement of his rights. On the other hand, if a claimant sends you a request, you should print the screen that shows the request was initiated by the claimant.
Would this really happen? Surprisingly, yes. I recently received a call from an adjuster asking how to proceed because she had been notified that a claimant would like to be her “friend.” She had several concerns, the first of which was her own privacy. After printing the screen with the request, she accepted the invitation late one night when she hoped the claimant would not be online. She printed what was useful and then “unfriended” the claimant. The downside of this method is that you take a onetime chance that there is useful information on the page when you look. If you are comfortable with your Internet skills, you could also accept the request, then hide all of your information from the claimant. This causes some people to feel vulnerable. Further, the claimant might figure out that you are observing his activity and end the connection.
On some social networking sites, including Twitter, it is not required to be someone’s “friend” to observe his or her activity. An adjuster recently advised that a claimant had scheduled back surgery. As defendant’s counsel, we received no medical records confirming this allegation, causing us to question the adjuster’s source. Her response was simply “the horse’s mouth,” along with a printout of the claimant’s Twitter page. Other cases have included claimants revealing vacations, drug use, employment, or photographs of activities that they deny the capacity in which to be involved. All of these types of activities can be presented to the judge during litigation or to an IME physician during the claimant’s deposition.
As is well established in Pennsylvania, the rules of evidence are not strictly adhered to in workers’ compensation matters. This prevents any set rules on the presentation of this evidence and what must be established to authenticate the evidence. If there are photographs attached to the website, you will generally have an easier time establishing that the information relates to the claimant in your case. In some instances, you can request that the court order the claimant to permit access to even non-public portions of their social networking pages. In order do so, you must substantiate that the information on the public portion of the website leads to an inference that there is additional information related to the claim in the non-public pages. The reality is that the claimant will most likely delete or alter the information before the court makes such a determination. While useful, obtaining information from websites such as Facebook, Myspace, or Twitter has proven to be difficult and can be time consuming.
What It Means to You
The use of social networking sites for discovery purposes is not only useful, in many cases it is recommended. If you need assistance with a search, contact your attorney for additional advice. If your search provides what appears to be useful information, including pictures of a claimant participating in hobbies or activities which are beyond his or her alleged physical abilities and you believe there are additional pictures contained on the claimant’s webpage, advise your attorney. It is important to act quickly and decisively, potentially filing a motion with the court to avoid the destruction or deletion of any useful website information. Finally, while it is important to perform searches on all claimants, it is also important to protect your own privacy during the search. These search methods should only be undertaken if you feel comfortable doing so.