Presenting a live 90-minute webinar with interactive Q&A Workers’ Compensation and the Role of Social Media: An Effective Evidentiary Tool in Defending Claims Navigating Discovery, Privacy, Evidentiary and Ethical Issues to Leverage the Benefits of Social Media WEDNESDAY, APRIL 17, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Thomas O. Sippel, Partner, Leitner Williams Dooley & Napolitan , Atlanta, Ga. Bernadette M. O'Brien, Managing Attorney of Employment Law Dept., Floyd Skeren & Kelly , Calabasas, Calif. David L. Jimenez, Partner, Floyd Skeren & Kelly , Thousand Oaks, Calif. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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INTRODUCTION/COMMON METHODS FOR OBTAINING SOCIAL MEDIA EVIDENCE By Bernadette M. O’Brien, Esq . (916) 920-1100 ext. 3250 5 bernadette.obrien@fsklaw.com
WC INVESTIGATIONS INCREASINGLY INVOLVE SOCIAL MEDIA • Social media sites such as Facebook, and internet search engines such as Google, Bing, and Yahoo! provide valuable sources for obtaining information about injured workers/claimants; • Defense attorneys, investigators and claims adjusters are increasingly using social media to conduct investigations (including surveillance) of injured workers as part of the discovery process; • Introduction of social media evidence in workers’ compensation litigation will become routine; • However, it is imperative for those using social media for workers’ compensation investigations to familiarize themselves with the 6 issues.
WHY IS SOCIAL MEDIA INFORMATION VALUABLE IN A WC INVESTIGATION? Social media can show personal status updates; comments by “friends”; photos or videos of a claimant ; and/or, on- or off-the-job activities or events that the claimant has engaged in. Social media evidence often will substantiate some other evidence found in an investigation, such as a statement from a co-worker or witness, surveillance such as video, or medical records indicating the claimant is not injured, is not injured to the degree claimed, or was injured by other than the stated cause. 7 However, in some cases, the only information found to show insurance fraud would be the social media evidence itself.
FORMAL PROCEDURES FOR OBTAINING SOCIAL MEDIA INFORMATION Depositions, requests for production of documents and interrogatories. Subpoenas may be issued to obtain social media information regarding a claimant. The subpoena may be issued directly to the social media website operator, which may be particularly appropriate in situations where the applicant has deactivated his or her social media account. 8
HOW CAN INFORMATION OBTAINED FROM SOCIAL MEDIA BE USED? • To establish fraud, collusion. • Even if evidence of direct fraud may be lacking, a claimant may hurt his or her credibility if claiming a certain level of permanent impairment while participating in activities which conflict with that claim, thereby resulting in a reduction of PD. 9 • Locate potential witnesses.
CASE EXAMPLES A Los Angeles-area warehouse worker who claimed his back injury prevented him from working posted that he bowled a perfect game on his Facebook page. A judo instructor filed for total and permanent injury, and later posted dates he was available for class instruction. A bronco-riding champ filed a claim, and soon after invited online buddies to attend his upcoming competition. 10
QUERY: ARE SOCIAL MEDIA POSTINGS FAIR GAME WHEN CONDUCTING A WORKERS’ COMP FRAUD INVESTIGATION? In general, most experts say yes because the information is “public”, although the law in this area is unsettled. The reasoning is that a privacy argument is unlikely to prevail in court because a person has no reasonable expectation of privacy in whether he or she has a social media account or in what is posted in his or her profile, because the information is public. Even if a claimant protects his or her social media profile information with privacy settings, the information is still available to at least some third 11 parties, to whom the claimant gives access (the claimant’s "friends").
SOCIAL MEDIA USE AND RISKS RELATED TO WC INVESTIGATIONS • Claimant asserts a violation of the right to privacy or an ethical violation; • Claimant asserts the attorney, investigator, employer, and/or carrier illegally used information regarding the claimant that was obtained via social media or asserts that information was unlawfully obtained. 12
PROBLEM: COMPETING INTERESTS Employee’s right to privacy and freedom of speech when using social media, versus, Employer’s/carrier’s right to protect its business interests when using social media or monitoring employee/claimant use of social media, including as part of a 13 WC investigation.
WHO IS USING SOCIAL MEDIA TO OBTAIN INFORMATION ON A CLAIMANT? • Insurance carriers/claims adjusters • Investigators/attorneys • Employers (including information provided by a co-worker who is a social media “friend” of claimant) • Anonymous tips 14
COMMON METHODS FOR OBTAINING SOCIAL MEDIA INFORMATION • Internet searches, including “googling” the claimant’s name. • Viewing the claimant’s social media sites such as Facebook, MySpace or Linkedin, to the extent the information is “public” (some insurance companies set up special computers for this purpose so the investigator/adjuster is not using his or her own account). 15 • Looking at sites of the claimant’s friends.
PRIVACY, EVIDENTIARY AND ETHICAL CHALLENGES By David Jimenez, Esq. (818) 715-0018 ext. 7300 david.jimenez@fsklaw.com 16
POTENTIAL ROADBLOCKS TO USING SOCIAL MEDIA INFORMATION IN A WC INVESTIGATION? • Due Process • Discovery-Motions for protective orders • Privacy Rights of the Claimant • Possible professional responsibility obligations/ethical considerations • Foundational requirements Problem: No really clear direction yet from courts or legislature, although Quon case and NLRB advisory letters provides some guidance in terms of workplace use of social 17 media. In California, we now have AB 1844.
TRADITIONAL MEANS OF INVESTIGATING A CLAIM • Physician reports • Applicant’s testimony • Witnesses • Subrosa investigations Social Media adds a powerful new tool for WC investigations 18
USE OF SOCIAL MEDIA AND PRIVACY CONCERNS- CALIFORNIA LAW AS AN EXAMPLE • Use of Social Media as part of a workers’ compensation investigation may trigger a claim of invasion of privacy by the claimant. • Allison v. WCAB (1999) 64 CCC 624 and Pettus v. Cole (1996) 61 CCC 975 (both cases contain extensive references to privacy rights). • Privacy is also central to the California Confidentiality of medical Information Act (Civil Code 56 et seq.) and is part of the California Constitution, Article I, Section I. 19
ETHICAL CONSIDERATIONS: WHAT ABOUT “PRETEXT”? Use of social media may trigger an ethical violation claim. For example, workers’ compensation investigators should proceed with considerable caution before “friending” or contacting a claimant through a social media site, by use of pretext (ie creating, for example, a Facebook account under a false name and “friending” the claimant). Such “pretext” may be deceptive/unlawful and put the admissibility of the social media evidence into question. Facebook’s user terms forbid pretext, other social media sites may also. Note: insurance investigators in a number of states — currently 14 (California Insurance Code Section 791.03) — have the legal and ethical 20 right to utilize pretext as long as it’s for the investigation of a suspected insurance fraud claim.
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