I Spy For Free Vol 2: Potential Pitfalls of Social Media Discovery

10.12.2016


By Donald R. Barthel 

Welcome to the internet age. For those of you—like me—who are of a "certain" age, a life without computers has been replaced Google, email, texts, online shopping, instant messages, LinkedIn, Twitter, Skype, Facebook...and all those other means of communication that my 15 year old children try to explain to me. (I've got to admit: I've been on electronic overload ever since the introduction of the game "Pong" in 1972!) While sometimes overwhelming, this interconnectedness has many benefits not originally intended by its creators: discovery. There is a wealth of information available with just the click or two of a mouse. Some claimants’ social media profiles are surprisingly accessible to the general public. Information on these profiles can go back over many years. It is possible to find a claimant hiking, fishing, dancing—you name it—close in time to the injury. This information can prove to be very useful during a deposition or a cross-examination. And it's nearly all free.

I posted an article in 2010, "I Spy...For Free", in which I detailed many of the advantages of conducting at least some of your discovery efforts via internet searches.(See http://bradfordbarthel.blogspot.com/2010/01/i-spy.html#more) Six years later, all of those benefits remain and many more have come to the fore. In the meantime, however, some folks have pushed the envelope a little too far, resulting in statutes, case law and state bar ethical opinions aimed at curtailing the more outrageous abuses and violations of privacy.

As a general rule, we retain the right to access, review and obtain copies of the "public" portions of someone's (applicant's) social networking sites. Although most such sites include privacy protections to keep prying eyes from accessing information, many users fail to make use of—or make limited use of—these controls. This can lead to the release of fascinating information. For example, I once discovered that an applicant who was collecting temporary disability was also using the Craigslist "adult" section to advertise her—how shall we say?—sensual services. How did I prove the applicant and advertiser were the same person? Easy! In addition to sharing the same phone number, the Craigslist ad included many R-rated pictures of the applicant. Needless to say, the case resolved both expeditiously and economically!

If internet discovery is something you'd like to do, by all means proceed. But proceed with caution. Lawyers, in particular, need to be savvy about all of the potential ethical problems. Considering creating an online relationship with applicant? Be careful. For example, California Rule of Professional Conduct provides, in part, "While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer." Thus, if applicant is represented, contacting him/her face-to-face, telephonically, via email, SnapChat, Facebook or via any other method is prohibited...unless applicant's attorney gives consent (which would seem to qualify as malpractice in most situations).

Want to "friend" an applicant on Facebook or interact via Match.com using a pretextual relationship? Think again. California Business & Professions Code 6068 requires, in pertinent part, that an attorney "employ...means only as are consistent with truth". Pretextual contacts are, by definition, deceptive and, thus, likely run afoul of the demand that the attorney's "means [be] consistent with the truth".

What is the punishment for inappropriate internet discovery, such as prextextual "friending"? The short answer: we don't know. However, a pre-internet California Supreme Court decision, Unruh v. Truck Insurance Exchange,7 Cal. 3d 616, 498 P.2d 1063, 102 Cal. Rptr. 815 (1972), may provide some guidance. In that case, an investigator, without revealing true role, caused applicant to become emotionally interested in him and used this opportunity to collect evidence suggesting she was faking her symptoms. Upon learning of the deceptively obtained sub rosa files, applicant's shock resulted in hospitalization. The Court held that the carrier was not protected by the exclusive-remedy clause from a suit for intentional infliction of emotional distress resulting in a physical and mental breakdown. One can easily imagine a similar fact pattern—and resulting remedy (civil liability)—where the investigator, adjuster and/or attorney make internet misrepresentations so as to gain access to applicant's secured, private social media web pages.

Want a copy of the public website for petition to compel release of internet information? There is no current authority preventing you hitting "print" on your computer. Why? So long as you have used no deception to obtain access, the applicant likely has no reasonable expectation of privacy. Want to obtain that information directly from the site via a third party subpoena? That will not likely succeed in California. You must request the information directly from the claimant via a written release after a reasonable suspicion is articulated. Applicant won't respond? Your best avenue is to file a Petition to Compel.

Speaking of invoking a court's authority, tribunals normally hold that posted social media information is discoverable because any privilege or privacy protection was waived by sharing the content. However, most courts require some showing of relevance and will not allow discovery of all or a broad scope of material. Usually, the discovering party must show information that at least suggests the existence of relevant information at the social media account before the court will order production or access to the information.

In summary, the internet is chock-full of fascinating, discoverable information that may lead to defense victory, whether it be an aoe/coe defense or fraud conviction. It is, therefore, essential that the internet be mined via appropriate discovery efforts. The key word there is, of course, "appropriate". Inappropriate discovery can lead to inadmissible evidence, sanctions, state bar investigations and civil liability. Be wise! Investigate safely.

Donald Barthel is a Founding Partner at Bradford & Barthel, LLP (Sacramento). Mr. Barthel’s entire legal career has been dedicated to the defense of employers’ rights in the arenas of labor law, employment law, and workers’ compensation. For nearly a quarter century his practice has exclusively focused on workers’ compensation defense and related matters. He can be reached atdbarthel@bradfordbarthel.com.

The foregoing was originally published on the Bradford and Barthel’s Blog and is reproduced here with permission of the author. No further republication is permitted without the author’s consent.


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