Social Networking Sites and Insurance Litigation

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Gary Zimmerman is a lawyer with the McLennan Ross law firm of Edmonton, Alberta. He discusses the effect of social media sites like Facebook, Twitter, MySpace, et cetera have on the insurance industry when it comes to litigation.

Gary Zimmerman: Generally, what it is, they call it user generated content, UGC. That content is actually mind blowing if you look at the statistics out there. It’s social networking. It allows people to connect with each other of course, which is exactly what the word implies. But when people are connecting with each other, they’re obviously posting information in somewhat of a public domain. And it’s that information that they’re posting that’s often interesting to parties involved in litigation . . . all sorts of litigation. Not only insurance matters that relate to motor vehicle accidents where a plaintiff is putting their own health at issue, but all sorts of litigation. And what you’ll be able to find is that the police have started using social networking web sites to track criminals that have evaded service for two or three years.

Recently in Australia an order was granted allowing a party to be served legal documents through Facebook. Right now what you have, you’ve got a number of different social networking sites, but the dominant one at the moment is definitely Facebook. Facebook has 200 million active users, they boast. That makes them the fifth largest country in the world. It’s actually pretty interesting.

Other ones that are dominant players are of course Twitter, but MySpace is there, and YouTube. YouTube is truly amazing too because there’s 150 thousand videos uploaded to YouTube daily. Now you can imagine if you’re involved in personal injury litigation what that means because when someone makes a claim, they put their health at issue. You don’t have much to question their claims because their claims are often subjective. I’m in pain. And so one of the ways we, as defense counsel, try to verify or refute their allegations, is by hiring private investigators, we get surveillance on people. And it’s very common to do that. But that’s governed by a whole bunch of factors, one of which is expense, another which is time, another of which is just being lucky to be in the right place at the right time. What we’ve found now is that with things like Facebook, people are their own private investigators. They might not anticipate . . . what happens is, they get caught up in the whole business of the fame, or whatever you want to call it, and they wind up posting photos of themselves, or status updates. I think Facebook suggests that 20 million users update their status once a day. And that can mean anything from, “Gary Zimmerman bench pressed 250 pounds today”—which you’ll never see on my site—or “Gary ran a marathon”, or whatever the case is. And those are important because if I’m defending an action, and the guy tells me he can’t go over and tie his shoes, and at the same period of time that he tells me this under oath, I’ve got his Facebook account that would suggest that he’s out there running marathons, it means a lot to me.

And so that’s changing the face of litigation, but we need a way to access that because as you probably know, you can have your privacy setting on Facebook. Most people will have private accounts, meaning not everyone can go in and view that account. Some have open accounts and in that instance, I as a defense counsel, will type in their name, take a look and maybe I hit the jackpot and maybe I don’t.  Where they have made theirs private in Facebook you’ll need to be a friend so-to-speak to access that information. And that’s not open to everyone.

And there’s questions as to whether private investigators should make these people their ‘friend’ for the purpose of investigating. That hasn’t gone to trial yet. I don’t recommend it at this stage for various reasons, because it might make that information unusable at trial, but that’s a whole different issue. In any event, what happens is . . . there’s a move right now to make the documents producible, that is the Facebook account. And there’s various way you can do that. One of which is the plaintiffs, if they’re putting their health at issue, should now voluntarily place the Facebook account, if they have one, and if it has pictures, status updates etc, they should place that information into the record automatically through an affidavit or records in Alberta, or whatever process in other provinces. The other way that you can do that . . .  in fact beyond that, is through asking for the documents after. Hopefully they’ll  then voluntarily comply. You can bring in application to compel those documents. When you’re at the discovery process you can ask for those documents. I’m calling them documents, but they’re more properly termed ‘records’ because they’re a Facebook site. It’s not truly a document.

And then the other way you can do it, as I said, is get a court order to compel a third party, and in this case Facebook or Twitter or whatever that organization is, to turn over their information that they have on their servers. And I gotta tell ya, this is a really new area of the law and they’re haven’t been to my knowledge, unless it’s been at the very recent past, any cases that have asked Facebook to turn over that information. Usually it’s an application against the plaintiff’s themselves to turn over the information. So it will be neat to see where that goes.

But in Florida not too long ago, there was a decision handed down against MySpace, and it wasn’t in a claim against MySpace, but what happened was, the State of Florida brought an application to have MySpace provide all of their digital records in relation to Casey Anthony. And I don’t know if that name rings any bells, but that’s the lady that was indicted for killing her two year old, and then not actually disclosing it to anyone for months. The two year old allegedly went missing and it made a lot of media. And what happened was, they brought in application, the State brought in application, to have MySpace deliver all their records. They did, and through that the State made their case that much stronger because she was in fact communicating with people through MySpace about going out and partying during the period that her child was allegedly missing and all of these other things. So it’s pretty neat and it’s moving very quickly right now.

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