REINSURANCE ASSOCIATION OF AMERICA REINSURANCE EDUCATION INSTITUTE RE CLAIMS 2017 New York, NY October 12-13, 2017 SOCIAL MEDIA USE IN CLAIMS HANDLING Daniel I. Prywes Partner Morris, Manning & Martin, LLP Washington, DC (202) 971-4182 dprywes@mmmlaw.com
Prevalence Of Social Media The PEW Research Center reported that, in 2016: 68 percent of all American adults used Facebook, while smaller percentages used Pinterest, Twitter, Instagram, and LinkedIn. 88 percent of online adults age 18-29 use Facebook. Another study reports that there are 293,000 status updates on Facebook every minute and nearly 1 billion Tweets processed every forty-eight hours on Twitter. Sources: http://www.pewinternet.org/2016/11/11/social-media-update-2016/ John G. Browning & Al Harrison, What Is That Doing on Facebook? A Guide to Advising Clients to Clean up Their Social Media Profiles, 53 HOUS. LAW. 26, 26 (2016). 2
Attorney Competence To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology... ABA Model Rule of Professional Responsibility 1.1, Comment No. 8. A lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the lawyer s use of social media. Social Media Guidelines of the New York State Bar Association s Commercial and Federal Litigation Section (updated May 11, 2017). 3
Types Of Claims In Which Social- Media Evidence Can Be Useful Personal injury and emotional distress. Property damage. Employment. Business loss. Claims arising out of social-media activity. Any kind of claim involving persons or businesses who use social media. Businesses, and not just individuals, use social media extensively. 4
Why Is Discovery Of Social-Media Content So Important? Old Discovery: Dispersed and Concealable by Plaintiff. Diaries Photographs Videos Social Media Discovery: Collected in One Place, and Outside of Plaintiff s Sole Control Since Online Friends Have Access. 5
The Expectation Gap Individuals often feel that private social-media content is private and should not be disclosed in discovery. Courts do not recognize any privilege for socialmedia content per se, though many seek to protect individuals against fishing expeditions of highly personal content. 6
Self-help. Discovery. Soup to Nuts: Finding Social Media Evidence and Using It Ethical issues for attorneys and their staff. Privacy issues. Scope of discoverable social-media evidence. Who should screen social-media evidence? Spoliation. Use at Trial. Authenticity, admissibility, probative value. Checking potential jurors social media accounts? Potential Downside of Finding Detrimental Information. 7
Self-Help (Attorneys and Claims Staff) Issues: Reviewing a person s public content on social media. Accessing Private content on Social Media. Can you friend a person who is not represented by counsel to gain access? Can you friend a plaintiff or other person who you know is represented by counsel to gain access? Can you make unauthorized use of passwords you obtain to gain access? Can you use deception to gain access to private content? 8
Basic Ethics Rules the Model Rules of Professional Conduct (Attorneys) Rule 4.1(a): In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person. Rule 4.2: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer... Rule 4.3: When dealing with an unrepresented person, if the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Rule 8.4(a) and (c): It is professional misconduct for a lawyer directly or through the acts of another to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 9
Social-Media Ethical Guidelines Social Media Guidelines issued by the Commercial and Federal Litigation Section of the New York State Bar Association (updated May 11, 2017). http://www.nysba.org/fedsocialmediaguidelines/ Guideline No. 4.A: Viewing a Public Portion of a Social Media Website. A lawyer may view the public portion of a person s social media profile or public posts even if such person is represented by another lawyer. Caution: Some social-media accounts may give the account holder notice of the identity of persons who view the account. 10
Social-Media Ethical Guidelines Guideline No. 4.B: Contacting An Unrepresented Party And/Or Requesting To View A Restricted Social Media Website. A lawyer may communicate with an unrepresented party and also request permission to view a restricted portion of the party s social media website or profile. However, the lawyer must use her full name and an accurate profile, and may not create a different or false profile in order to mask her identify. If the unrepresented party asks for additional information from the lawyer in response to the communication or access request, the lawyer must accurately provide the information requested by the person or otherwise cease all further communications and withdraw the request if applicable. Other States Have Ethics Opinions Which Require More Fuller Disclosure When Seeking To Friend Unrepresented Persons. 11
Social-Media Ethical Guidelines Guideline No. 4.C: Contacting a Represented Party and/or Viewing Restricted Social Media Website. A lawyer shall not contact a represented person or request access to review the restricted portion of the person s social media profile unless express consent has been furnished by the person s counsel. 12
Social-Media Ethical Guidelines Guideline No. 4.D: Lawyer s Use of Agents to Contact a Represented Party. As it relates to viewing a person s social media account, a lawyer shall not order or direct an agent to engage in specific conduct, or with knowledge of the specific conduct by such person, ratify it, where such conduct if engaged in by the lawyer would violate any ethics rules. Also: a party may violate the Stored Communications Act if it coerces a second party s social-media friend to provide access to the second party s social-media content. Pietrylo v. Hillstone Rest. Group, No. 06-5754, 2009 U.S. Dist. LEXIS 88702, at *9 (D.N.J. Sept. 25, 2009) (coerced consent). It may also be risky to solicit a party s social-media friends to share otherwise private social-media content. 13
Ethical and Legal Obligations of Non- Lawyers Attorneys are responsible for ensuring that non-lawyer insurance professionals who work under their direction comply with the ethical rules for attorney. Non-lawyer insurance professionals who do not work under the direction of lawyers may be subject to liability under state common law, or federal or state statutes, for accessing private social-media content in a deceptive or unauthorized way. Potential common-law claims include: Invasion of privacy (intrusion into private affairs where the intrusion would be highly offensive to a reasonable person) Misrepresentation (Fraudulent and Negligent) 14
Privacy Violations (Attorneys and Claims Staff) Can it be an invasion of privacy to access private social-media content that a person has posted for friends to see? [T]he victims acts of sharing their intimate photographs with a limited number of persons did not extinguish their expectation of privacy as to the Internet or the outside world in general. People v. Bollaert, 248 Cal. App. 4 th 699, 713, 203 Cal. Rptr. 3d 814, 827 (Ct. App. 4 th Calif. October 12, 2016) 15
Privacy Violations (Attorneys and Claims Staff) Federal and State statutes prohibit unauthorized access to private social-media content. Examples: 18 U.S.C 1030 -- Computer Fraud and Abuse Act (CFAA): it is a crime to intentionally access a computer without authorization, or to exceed authorized access, to obtain information. 18 U.S.C. 2701 Stored Communications Act: it is a crime to intentionally access an electronic communications service, or to exceed an authorization, in accessing information while in electronic storage. Examples of State laws prohibiting the on-line impersonation of another person to obtain a benefit or defraud: California Penal Code 528.5 Texas Penal Code 33.07 N.Y. McKinney s Penal Law 190.25(4) 16
How to Obtain Social-Media Evidence Through Discovery In Litigation From whom can you seek and obtain discovery of socialmedia evidence? What is the scope of discoverable social-media evidence? Who conducts the search of social-media evidence to determine relevance and responsiveness? 17
Plaintiff. From Whom Can You Seek Discovery of Social-Media Evidence? Third parties, including associates and friends of plaintiff; key executives in business cases. Social-media providers. Many courts have ruled that the Stored Communications Act (18 U.S.C. 2701) bars social-media providers from responding to civil subpoenas for social-media content. E.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010). Social-media providers are likely to vigorously resist civil subpoenas. Possible workaround: Get a court order requiring the plaintiff to consent to the social-media provider s release of content. E.g., Glazer v. Fireman s Fund Insurance Co., 2012 WL 1197167 (S.D.N.Y. April 5, 2012). 18
Scope of Permissible Discovery of Social-Media Content Need to Tailor Requests Content that involves the facts of the case Who, what, when, where. Discoverable. Content that involves the Plaintiff s mental state. More complicated: relevance, and how social media is searched. 19
Plaintiff s Mental State: Relevance Liability Damages Examples: Liability: Hostile Environment Cases Did a plaintiff find conduct to be subjectively offensive? Did a plaintiff unreasonably delay in filing a complaint? Damages: Emotional Distress Claims Garden variety. Depression, Anxiety, PTSD, etc. Interference with functioning and enjoyment of life. 20
Possible Document Requests Fishing Expedition: Produce all social media posts and entries made by Plaintiff on Facebook, MySpace, twitter or any other social media site between January 1, 2012 and the date of your response. Defendant is no more entitled to such unfettered access to plaintiff s personal email and social networking communications than it is to rummage through the desk drawers and closets in a plaintiff s home. Ogden v. All-State Career Sch., 29 F.R.D. 446, 450 (W.D. Pa. 2014). 21
Document Request Focused on Emotional Condition Produce all social media posts and entries made by Plaintiff on Facebook, MySpace, twitter, or any other social media site in which Plaintiff describes her emotional state or condition between January 1, 2012 and the date of your response. Helpful, but provides a very incomplete view of plaintiff s mental state. 22
Scope of Permissible Discovery -- Emotional Distress and Physical Injury Emotional distress: court ordered the production of social-media content containing specific references to the emotional distress she claims she suffered or treatment she received in connection with the wrongs alleged in the Complaint, and any posting that refer to an alternative potential stressor, but NOT every posting that might indicate the plaintiff s joy, happiness or sociability. Physical injury: court ordered production of postings or photographs on social networking websites that reflect physical capabilities inconsistent with a plaintiff s claimed injury are relevant. Giacchetto v. Patchogue-Medford Union Free School District, 293 F.R.D. 112 (E.D.N.Y. 2013). 23
Possible Document Requests Produce all documents that reveal, refer, or relate to: (a) (b) any emotion, feeling, or mental state, or events that could reasonably be expected to produce a significant emotion, feeling, or mental state. EEOC v. Simply Storage Mgmt. LLC, 270 F.R.D. 430, 434, 436 (S.D. Indiana 2010). Also: Pictures of the claimant taken during the relevant time period and posted on a claimant s profile will generally be discoverable because the context of the picture and the claimant s appearance may reveal the claimant s emotional or mental status. Id. 24
Who should screen the social-media content for responsive evidence? -- Defendant s counsel Fuhgeddaboudit -- Plaintiff Not reliable -- Plaintiff s counsel More reliable -- Court in camera review Seldom available in in first instance 25
Searching Social-Media Content Some courts have required the plaintiff s attorney to search social-media content: [T]he Courts directs that Plaintiff s postings be reviewed for relevance by Plaintiff s counsel and that Plaintiff s counsel not Plaintiff make a determination regarding the relevance of the postings, keeping in mind the broad scope of discovery contemplated under Rule 26. Giacchetto v. Patchogue- Medford Union Free School District, 293 F.R.D. 112, 117 (E.D.N.Y. 2013) (emphasis in original). EEOC v. Simply Storage Mgt., LLC, 270 F.R.D. 430, 436 (S.D. Ind. 2010): The court acknowledges that it has not drawn these lines with the precision litigants and their counsel typically seek....here, in the first instance, the EEOC's counsel will make those determinations based on the guidelines the court has provided. Some courts have declined to order a search by an independent third party: Hanna v. Giant Eagle Inc., Civ. No. 15-1009, 2016 WL 4206240 (W.D. Pa. August 10, 2016. 26
Scope of Permissible Discovery: Threshold Showing? Some courts have held that an insurer seeking discovery of private social-media evidence must make a threshold showing that publicly-available information on those sites undermines the non-movant s claims. Tucker v. Momentive Performance Materials USA, Inc., 2016 WL 8252929 (D.W. Va. Nov. 23, 2016) (citation omitted). Lesson: Try to develop independent evidence that private social-media content contains relevant information about the dispute, and that you are not merely on a fishing expedition. This can be done through preliminary interrogatories probing this issue, depositions of the plaintiff, or depositions or affidavits of those familiar with a plaintiff s social-media activity. 27
Scope of Permissible Discovery Protective Orders When seeking discovery of social-media content: Offer confidential treatment under a Protective Order. Where feasible, offer attorneys eyes only treatment for especially personal or sensitive social-media content. 28
Spoliation Courts have entered sanctions against plaintiffs who destroy their social-media content. For example: Lester v. Allied Concrete Co., 285 Va. 295, 736 S.E.2d 699 (Va. 2013): the plaintiff deleted 16 Facebook photographs after his lawyer told him to clean up his Facebook page; large money sanctions were imposed on the lawyer and his client, an adverse-inference jury instruction was given, and plaintiff s counsel was later suspended for five years. Gatto v. United Airlines, 2013 WL 1285285 (D.N.J. 2013): the court gave an adverse-inference jury instruction on spoliation where the plaintiff deleted a Facebook account during litigation. Advice: Make sure that social-media content is addressed in your own litigation-hold and document preservation efforts. Issue: Will parties be subject to spoliation findings if they use ephemeral social-media platforms (such as Snapchat) to communicate through vanishing posts once there is a reasonable prospect of litigation? 29
Basic Issues: Admissibility of Social-Media Content at Trial Relevance (Fed. R. Evid. 401) Authentication (Fed. R. Evid. 901-903) Is it Hearsay, or Does a Hearsay Exception Apply? (Fed. R. Evid. 801-807) Is the Probative Value of the Evidence Substantially Outweighed by a Danger of Unfair Prejudice? (Fed. R. Evid. 403) 30
Authentication Of Social-Media Content [T]he authentication of social media evidence... presents some special challenges because of the great ease in which a social media account may be falsified or a legitimate account may be accessed by an imposter. United States v. Browne, 834 F.3d 403, 412 (3d Cir. 2016). 31
Authentication Challenge: attribute authorship of the social-media content to the party or witness. Contexts vary: content obtained by (a) self-help; (b) through discovery of the party or witness against whom it will be used; or (c) obtained through discovery from third parties or from public sites. Possible disputes over authenticity: Does the opposing party claim the content is a fake, and/or that the opposing party s account was hacked? Does the opposing party claim that a third person was responsible for posting the content? Does the opposing party claim that metadata or other content was manipulated? Evidence of authenticity can be direct or circumstantial. 32
Authentication Circumstantial evidence could include evidence that: the alleged author communicated over the same social-media site; he or she used elsewhere used a similar, distinctive format or language; someone observed the alleged author posting on that site, the author acknowledged doing so, or the post reflects the alleged author s style of communicating; the alleged author s conduct was consistent with statements in the socialmedia content; or the content contains personal information not known to others besides the alleged author. United States v. Browne, 834 F.3d 403 (3d Cir. 2016); United States v. Barnes, 803 F.3d 209 (5th Cir. 2015); United States v. Vayner, 769 F.3d 125 (2d Cir. 2014). 33
Authentication Some courts are highly cautious in allowing social-media content into evidence, out of fear that it could be faked. Other courts apply traditional principles, looking to whether there is sufficient evidence of authenticity for a reasonable jury to conclude that the evidence is authentic. But even where that standard is applied, there must be some meaningful evidence of authenticity. Social-media content is not self-authenticating: United States v. Vayner, 769 F.3d 125 (2d Cir. 2014): in criminal case, the Second Circuit found that there was insufficient evidence that a printed page from a Russian social-media site similar to Facebook was authentic where there was no evidence that [the defendant] himself had created the page or was responsible for its content. Source: Use of Tweets as Evidence in Civil and Criminal Trials, 25 A.L.R. 3d Art. 5 (2017). 34
Authentication Take ample discovery to establish the authenticity of social-media content. Requests for Admissions can be useful. (Fed. R. Civ. P. 36.) Special care should be given to social-media content obtained from sources other than the opposing party. 35
Researching Jurors Social Media Guidelines issued by the Commercial and Federal Litigation Section of the New York State Bar Association (updated May 11, 2017). Guideline No. 6.A: Lawyers May Conduct Social Media Research. A lawyer may research a prospective or sitting juror s public social media profile, and posts. Guideline No. 6.B: A Juror s Social Media Profile May Be Viewed as Long as There Is No Communication with the Juror. A lawyer may view the social media profile of a prospective juror or sitting juror provided that there is no communication (whether initiated by the lawyer, her agent or automatically generated by the social media network) with the juror. 36
Researching Jurors Social Media Guidelines issued by the Commercial and Federal Litigation Section of the New York State Bar Association (updated May 11, 2017). Guideline No. 6.C: Deceit Shall Not Be Used to View a Juror s Social Media. A lawyer may not make misrepresentations or engage in deceit in order to be able to view the social media profile of a prospective juror or sitting juror, nor may a lawyer direct others to do so. Guideline No. 6.D: Juror Contact During Trial. After a juror has been sworn in and throughout the trial, a lawyer may view or monitor the social-media profile and posts of a juror provided that there is no communication (whether initiated by the lawyer, her agent or automatically generated by the social media network) with the juror. 37
The Downside of Finding Detrimental Information Reciprocity: sauce for the goose is sauce for the gander. Identification of evidence supporting a plaintiff s claims. Disclosure of unfavorable information about the insured s key witnesses or executives. Disclosure of wrongful conduct unrelated to the issues in the case. Will the plaintiff be able to credibly claim that the forced disclosure of social-media evidence caused additional emotional distress or other injury to the plaintiff? Beye v. Horizon Blue Cross Blue Shield of New Jersey, Civil No. 06-5337, 2007 WL 7393489 (D.N.J. 2007) (court ordered production of Facebook content despite claim that such production would exacerbate the eating disorders of the plaintiffs beneficiaries who were minors; The privacy concerns are far less where the beneficiary herself chose to disclose the information ). 38
Don t Worry, Be Happy 39
Disclaimer The materials and information presented and contained within this document are provided by MMM as general information only, and do not, and are not intended to constitute legal advice. Any opinions expressed within this document are solely the opinion of the individual author(s) and may not reflect the opinions of MMM, individual attorneys, or personnel, or the opinions of MMM clients. The materials and information are for the sole use of their recipient and should not be distributed or repurposed without the approval of the individual author(s) and Morris, Manning & Martin LLP. This document is Copyright 2012 Morris, Manning & Martin, LLP. All rights reserved worldwide. 40