Compelling Social Media Issues in Litigation

By Raphael Duran, Esq. and Andrea Cicero Rock, Esq.*

Key Points:

• Social media can be utilized in workers’ compensation matters.
• Common Pleas Court decision in Largant v. Reed permits access to social media passwords and information in certain circumstances.

Facebook has over one billion users in the world. What is the chance that a claimant in your workers' compensation case is one of those users? Very likely – and, more importantly, what is contained on their account? Social media has become an invaluable tool in the investigation process, just as other tools including, surveillance, index checks and depositions. This article will explore ways to utilize social media in litigation.

Defense attorneys have long wanted access to claimants' social media accounts. Often, an account holds information that is crucial to the defense of a claim. So what happens when defense counsel attempts to compel a claimant's login information? This issue was recently addressed by the Franklin County Court of Common Pleas.

In November of 2011, the Franklin County Court of Common Pleas issued an opinion defining the discoverability of online social networking information in a personal injury civil case. In Largent v. Reed, the defendant filed a motion to compel the plaintiff's Facebook login information. The motion explained that the defendant had a good faith belief that information on the Facebook profile was relevant to the defense. The defendant argued that certain posts on the plaintiff's Facebook page contradicted her claims of serious and severe injury. The court ultimately compelled the plaintiff to disclose to the defendant her Facebook username, email and password. The court rationalized that there is no reasonable expectation of privacy in material posted on Facebook, as almost all information is shared with third parties. It is a well known fact that Facebook is in the business of sharing users' personal information with third parties, such as advertisers and corporations. Even if a user makes their Facebook page private, it would not shield one from a discovery request, since even "private" posts are shared with others. This was the rationale the court followed in determining that one's account login information is, in fact, discoverable, at least when there is a good faith belief that the information is relevant to the defense. The court also ordered the plaintiff not to delete or otherwise erase any information on her Facebook account. The information was made available for 35 days from the date of the order.

The precedent set by Largent v. Reed is a victory for the defense in civil and workers' compensation cases. Claims adjusters, attorneys and surveillance investigators can utilize Facebook and other social media sites to gather information regarding a claimant's physical activities, mental status and location. The information on Facebook will often provide a firsthand account of a claimant's activities and capabilities. This information could be used to attack the claimant's credibility, contradict their claims about physical restrictions and provide information as to where they may have been at certain points of time.

This tool should be used not as a "fishing expedition," but as a means of investigation once there exists a good faith belief that there is pertinent information on the account. We recommend beginning any workers' compensation investigation with a simple Google search. This can give one a general insight into the claimant's background. Secondly, we recommend searching the various social media sites including Facebook, MySpace, Twitter and LinkedIn. Note that while the claimant may hide his/her Facebook profile from Google searches, the names of relatives, fiancé, spouse, etc., can be obtained, and one may be able to locate his/her through a search of that information. Investigators should be able to gain access to this information through their social media checks, which a defense attorney may then utilize to gather more information.

Not every case is intended for a motion to compel the claimant's social media login information. Instead, these techniques are intended in cases where there may be an inkling that the information would be relevant in the defense based upon an analysis of the available facts. The courts will be more likely to grant a motion under these circumstances.

Defense Digest, Vol. 19, No. 1, March 2013