I suggested last year that you review your Facebook privacy settings and block access to your wall, photos and other personal information to trusted friends only.

Now, it seems that some defense counsel are taking the next step – that is they are using the discovery rules (interrogatories, requests for production of documents) to require you to make your Facebook profile available as part of the investigation of your case.  This means that the insurance company’s lawyer can demand that you provide access to your Facebook photos, wall and profile.

I recently reviewed a law review article entitled Social Networking and Workers’ Compensation Law at the Crossroads, by Professor Gregory Duhl and attorney Jaclyn Millner.  The authors correctly note that the rules of evidence are more relaxed in an administrative forum like a state workers’ compensation board and that workers’ compensation judges see value in considering the social networking profiles of claimants.

In my Georgia practice I regularly advise my clients that insurance companies will hire private investigators to conduct video surveillance, hoping to videotape a claimant performing  a physical activity that is inconsistent with his claimed injury.  Now I am adding to that warning a suggestion that my clients refrain from posting on Facebook, MySpace, Twitter and other social networking sites that could produce screen shots or other evidence that could be used to fight a claim.

More recently I have learned of a case where the insurance company’s defense lawyer used a “request for the production of documents” to demand that an injured claimant turn over his personal computer to be examined by the lawyer.  As you may know, when you file a workers’ compensation claim in Georgia, both sides are allowed to demand information from the other per Georgia’ “discovery rules.”

Apparently, in this case, the insurance company believes that the claimant’s hard drive will reveal damaging information – perhaps photos, evidence of work or physical activity, or it may be just a fishing expedition.

Now, this was not my case, and at this point, at least, this demand for the claimant’s computer has not become a regular part of defense counsel’s arsenal, but I think that this type of request sets a very bad precedent.  I learned about this case in a monthly meeting I attend with a few other claimant’s lawyers who get together to discuss current developments in the law and winning strategies.  All of us in last month’s meeting were somewhat taken aback by this discovery request as well as the presiding judge’s approval of the request.  We all agreed that if any of use are involved in a case and the insurance company asks to look at our clients’ computers, we will fight this request vigorously.

However, I would be remiss if I did not let you know about this troubling development.  It is certainly possible that a Georgia appellate court could sanction this type of discovery under certain circumstances.  Therefore, I will be telling my clients to not only be aware that their outside activities could be videotaped by an insurance company private investigator, but that their emails, photographs and other computer activities could be examined by a hostile adversary in a workers’ compensation case.

And for those of you who say “let them look – I have nothing to hide” I would respond by saying that clever defense counsel can take photos, videos and correspondence out of context that will make you look deceitful.