Good old Google may be an insurance investigator’s best friend. Routinely looking for claimants’ profiles can yield as much information as expensive and common video surveillance techniques used by insurance companies and defense counsel.
Sometimes photos or status updates can yield information that indicates a fraudulent claim, demonstrating a claimant is capable of physical activity beyond whatever grave condition he or she is claiming. It is wise for plaintiff’s attorneys to ask clients if they maintain profiles on any of the many popular sites.(WCxKit)
Regardless, it seems that searching unprotected information on-line is comparable to public video surveillance as long as neither defense counsel nor their investigators initiate contact with the opposing party – for example, by “friending” them. Non-attorney investigators and insurance company representatives are not regulated by the attorney codes of professional responsibility and, if not associated with an attorney, may have a little more freedom when interacting with claimants. However, it is advisable to proceed with extreme caution under these circumstances, even if the claim has not yet been referred to an attorney.
Once you have received court permission, if the claimant refuses to turn over records or deletes information, it is possible to contact the social networking site operators to attain the information. Two defenses site operators have in refusing to offer the information are the Stored Communications Act (SCA) and violation of privacy. An exception can be made for the SCA if the claimant authorizes the disclosure. Privacy claims are unlikely to hold up in court because the very nature of social networking implies the user has given access to at least some members of the general public.(WCxKit)
In summary, the workers compensation industry will increasingly face discovery, privacy, and professional responsibility issues that arise when dealing with social networking information. Attorneys, insurance companies, and investigators should familiarize themselves with these networking technologies to take a bigger step toward combating insurance fraud.
About the authors:
Gregory M. Duhl is an Associate Professor of Law at the William Mitchell College of Law in St. Paul, Minn., as well as the executive editor of The Business Lawyer, the flagship publication of the ABA Section of Business Law. He received a B.A. summa cum laude from Yale University, a J.D. cum laude from Harvard Law School, and an LL.M. in Legal Education from the Temple University James E. Beasley School of Law. He can be reached at firstname.lastname@example.org.
Jaclyn S. Millner is an in-house attorney for Liberty Mutual in Minneapolis, Minn., practicing workers compensation and insurance litigation. She is licensed to practice law in Wisconsin and Minnesota. She has a B.A. from the University of Michigan and a J.D. magna cum laude from the William Mitchell College of Law in St. Paul, Minn. She was an editor of the William Mitchell Law Review. She can be reached at email@example.com.
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