Last year I published an article on this blog entitled “How Facebook Can Undermine Your Workers’ Compensation Case.” I pointed out then that the default “privacy” settings on Facebook offered very little privacy at all – your “wall” containing status updates and comments from friends, and your photos are publicly viewable and insurance defense lawyers as well as human resource supervisors will eagerly view your profile to gather evidence. Some of these photos and comments could be taken out of context and could either reduce the settlement value of your case, or could convince a judge that your injury is not as severe as you content.
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.
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Last July, I wrote a post on this blog about how your Facebook profile could be used against you in your case. The Georgia State Board of Workers’ Compensation will allow defense counsel to introduce status updates and pictures to challenge your assertions that you are injured and cannot work. This is in addition to the surveillance and other investigation that defense counsel use to impugn your credibility.
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. More on Judge Orders Injured Worker to Allow Insurance Company to Examine His Computer
If you have a computer and enjoy sufing the web, there is a good chance that you have a profile on Facebook, mySpace, Twitter or any of more than a hundred social media sites. These sites exist to help you connect with others – often for social purposes, and sometimes for business purposes.
How can an account at Facebook or many of these other sites hurt your workers’ compensation case? When you create a profile on Facebook, your account has a default privacy setting that offers no privacy. Anyone who has a Facebook account anywhere in the world can find your profile and read what you have posted, what others have posted on your “wall” and view photos that have been “tagged” with your name.
Insurance defense lawyers are well aware of Facebook, and they are aware that many Facebook users may not be very savvy about changing privacy settings. Perhaps there is a photo of you attending a ball game or a family gathering. Maybe you listed yourself as the CEO of ABC Enterprises. Thanks to New York workers’ compensation lawyer Jim Reed who posted about this issue on his New York InjuryLaw blog.
Photos and updates can easily be taken out of context. Even your frequency of posting can be used as evidence that you have the capacity to perform clerical type of work. Posts on Facebook and other social media sites can be used against you to put you on the defensive and as leverage to reduce the value of your case.
So, if you enjoy using Facebook or similar sites, take a few minutes to learn about the privacy settings. Block your profile to all but known friends and avoid “friending” someone that you don’t really know.
If you were not already aware that there is no real privacy in the world, now you know. Take steps to protect yourself.
Filed under Maximizing your settlement, Miscellaneous information by
