– October 25, 2010
A LinkedIn group discussion produces some interesting views on using sites like Facebook to investigate losses
Around February 2010 the following question was posted on LinkedIn on the Insurance Professionals Group discussion board:
Is anyone using social networking sites (like Facebook and LinkedIn) to investigate claims?
Over the next 9 months it has generated over 80 comments on the subject. Now I would have thought using social media, as a regular part of the claims investigation is a no brainer, however, there were some interesting posts on the subject.
Generally, claims adjusters, attorneys and investigators are all using social media websites to help learn more information about claimants. It is generally believed that these sites can provide valuable information that can help mitigate damages. In reading the various comments, it was interesting to see how different groups, attorneys, claims professionals and investigators, saw the benefits of these types of investigation.
1. Lawyers – A great help during cross examination
Attorneys felt that public postings on Facebook and other similar sites are great sources of information that can be used to cross-examine a witness at the time of trial or at a deposition. As one attorney put it:
The importance of this information cannot be overstated although there are potential pitfalls, particularly on the ethical front. The bottom line is jurors and other fact finders really respond to this evidence, in my opinion, and thus it will continue to have an impact on litigation for as long as social medial remains popular.
As another lawyer said there is no difference between mining information online and surveillance and is a necessary tool to assist defense counsel to glean whether the claimant is telling “the truth of the matter asserted.” Collectively, attorneys addressed the admissibility of these types of postings and how courts are addressing privacy concerns.
2. Claims Professionals – Cheap Surveillance
Many claim professionals commented on the value of using these sites to gain additional information and as a tool to help prevent fraud. An overriding issue, however, were corporate systems blocking access to claims professionals to these sites. Nonetheless, many claims professionals in those situations simply conducted their investigations from their home computers.
One claims professional was adamant that looking at claimant’s facebook was an invasion of privacy and would tarnish the insurance companies reputation. He felt that looking into “people’s personal affairs is a serious lack of respect, and almost criminal.” I have to say I can’t agree with this one. If the information is publicly accessible on the web then it is reasonable to assume that it will be looked at. Privacy settings can enable users of social media to determine what people can and can’t see.
The ability to glean some basic information that can help claims professionals essentially “triage” which cases need further investigation or surveillance is a great money and time saving tool. Throughout the comments there were stories of how claimants postings ran contrary to the presented claims and formed that basis to allow claim handlers to conduct further investigation which led to a mitigation or denial of a claim.
3. Investigators – Aggressive in their approach
This group is the most aggressive about using social media to learn more about claimants. So much so that some, I believe, may be crossing the line a bit. Some investigators spoke of trying to get around privacy settings by be-friending a claimant or setting up dummy profiles to gain access. Many in the discussion collectively frowned upon this type of action. Additionally, these actions were seen as a violation of many of the Terms of Service that govern the use of these sites.
If your investigator is gaining access in this manner it may be worth establishing a policy with the investigator as to how much is acceptable. There are means to seek court orders to disclose this type of information and I would recommend following that route before taking more “clandestine” approaches. The company may be exposed to privacy violations if their agents are breaking privacy settings and gaining information inappropriately.
Don’t pass up the opportunity
Claims handling is about assessing the loss, establishing a proper reserve and moving the matter to a fair and prompt resolution. I believe strongly that conducting reviews online of claimants is an essential and reasonable method to learn more about the claims being presented. As long as the information is placed in the public domain I believe it to be fair game.
Having said the above, be aware that a Google search and Facebook profile may not always be what they purport to be. I have heard of cases where someone would create false profiles on LinkedIn for the very purpose of throwing people off. It is important that if you are going to take a strong position, or claim a fraud, that the evidence be supported by more than a Google search.
Linkedin
Twitter
Recently provided by our friend and colleague – Bhalinder L. Rikhye, Appellate Counsel,
Peltz & Walker.
Please take note of the following:
Romano v Steelcase, Inc., 2010 NY Slip Op 20388 (NY Sup. Suffolk Co.) (Jeffrey A. Spinner, J., Sep. 21, 2010)
By placing her physical condition at issue in a tort claim over a fall from an office chair at work, the plaintiff waived any expectation of privacy in her nonpublic social networking posts relevant to show the extent of her injury and damages.
As defendant had successfully demonstrated that plaintiff, Kathleen Romano, might have relevant material on her “private” Facebook and MySpace pages, the court ruled that she had to provide access to all of the material on the sites.
“In light of the fact that the public portions of plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action,” said the judge in a written opinion.
The case is also reported in New York Law Journal < http://www.law.com/jsp/article.jsp?id=1202472483935&Suffolk_County_NY_Judge_Grants_Discovery_of_Postings_on_Social_Media> .
Also, I am sure you have seen these ethics opinions, but just in case you have not, here are opinions by the NYSBA and the ABA.
http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=43208
http://www.abajournal.com/news/article/lawyers_cant_friend_potential_witnesses_under_false_pretenses_ethics_opinio
Both opinions agree with your assessment that a lawyer (and I suppose by extension, anyone acting on the lawyer’s behalf, such as an investigator) should not use deception to “friend” the individual. But if Romano stays good law (I do not know whether plaintiff is appealing) defendants would have the right to serve a discovery demand for all this information.
With this statement http://www.law.com/jsp/article.jsp?id=1202472483935&Suffolk_County_NY_Judge_Grants_Discovery_of_Postings_on_Social_Media, you have proved your point..