As social networking websites continue to rise in popularity, attorneys are increasingly searching such websites to uncover information about injured employees as part of the discovery process. Over time, this form of discovery will become customary, and introduction of social networking evidence in workers compensation litigation will become routine. It is therefore important for workers compensation attorneys to become familiar with the issues involved in using social networking information in litigation. These issues include (1) informal discovery; (2) formal discovery; (3) discovery from site operators and privacy; (4) ethical and professional responsibility considerations; and (5) admissibility of social networking evidence.
1. Informal Discovery
Defense attorneys should routinely look for injured employees on search engines such as Yahoo! and Google, as well as on the social networking websites themselves, such as Facebook and MySpace. Internet searches for public social networking profiles are similar to the common informal video surveillance investigations of injured employees many insurance companies and defense counsel perform. (WCxKit)
Of course, some employees may use security settings to prevent the public from viewing their social networking profiles. Attorneys for plaintiffs should advise their clients not to discuss or post information about any alleged work injuries or physical capabilities. At minimum, attorneys for plaintiffs should advise their clients to place security settings on their profiles so defense counsel cannot freely discover them by a simple internet search. However, injured employees should be aware that defense counsel can request production of social networking information, even if they are unable to access it publicly.
2. Formal Discovery
Just as workers compensation attorneys often request medical and employment records of plaintiffs through the formal discovery process, defense attorneys can request relevant social networking records during discovery. When deposing an employee, defense counsel should routinely ask the employee whether s/he maintains a Facebook or other social networking profile.
Formal discovery requests for social networking information must be narrowly tailored in order to be valid. This includes information relating to the physical capabilities and alleged work injuries, including photographs, videos, message board posts, and other communications of the employee.
Attorneys have already begun to request social networking information through discovery, and such requests are not limited to the context of workers compensation. Although some states have restrictive rules for discovery to uphold the underlying goal of efficiency of the workers compensation system, most states follow the state rules for discovery in workers compensation litigation. In addition, states with restricted rules for discovery usually permit the workers compensation judge to allow broader discovery if it will help a party present its case more effectively. Therefore, workers compensation attorneys cannot dodge formal requests for social networking information merely because of state rules for discovery are not generally followed in workers compensation cases.
3. Discovery from Site Operators and Privacy Issues
If the employee refuses or is unable to provide social networking information to defense counsel, defense counsel may request this information from the social networking site operator directly. Situations in which this would occur include the employee deleting or deactivating his/her social networking account, or simply refusing to turn over the information.
Most social networking websites have privacy policies allowing them to provide social networking profile information in response to a narrowly tailored discovery request or court order.
Employees and site operators have two defenses to such requests by defense counsel, including that production is barred by the Stored Communications Act and that an employee has a privacy interest in his/her social networking profile.
However, an exception to the Stored Communications Act is that the employee can give permission to the social networking site to disclose information relating to his/her social networking profile, similar to an authorization for medical records provided to a record custodian at a medical facility. A privacy argument is unlikely to prevail in workers compensation court because a person has no reasonable expectation of privacy in whether s/he has a social networking account or in what is posted in his/her profile.
4. Ethical and Professional Responsibility Considerations
Attorneys need to be aware of professional responsibility rules in conducting social networking investigations.
For example, attorneys for plaintiffs may not advise their clients to delete relevant photographs, videos, or communications from their social networking accounts. Defense counsel cannot initiate contact with an opposing party represented by counsel. Therefore, it is unlikely that defense counsel can “friend” an employee represented by counsel on Facebook or another social networking site.
Non-attorney investigators and insurance company representatives in workers compensation litigation often conduct video surveillance. Unlike attorneys, these people are not regulated by the rules of professional responsibility. However, attorneys working with insurance companies and private investigators must be careful, because an attorney most likely cannot advise a non-attorney to initiate contact with an employee represented by counsel. Workers compensation attorneys should therefore be very cautious in working with third parties who “friend” employees on social networking websites.
It is important to remember that these ethical considerations are not applicable to informal discovery social networking sites when the information is publicly available and no direct communication is made with the employee.
5. Admissibility of Social Networking Evidence
Social networking evidence has been admitted in court in different types of cases, from family law to employment law to criminal law. Most states follow relaxed rules of evidence for workers compensation, indicating that it is likely that such evidence would be admissible in workers compensation litigation as well.
Workers compensation attorneys should realize that relevant social networking information will likely be admissible as evidence, as are traditional forms of surveillance, so long as there is foundation for the evidence, and notice is provided to opposing counsel. Objections to admission of social networking evidence on the basis of hearsay are generally not applicable to the workers compensation context, as hearsay rules generally do not apply. (WCxKit)
Although many courts are unfamiliar with social networking evidence, this area continues to evolve, and it is clear that social networking evidence will play an increasingly prevalent and important role in all aspects of the litigation process in workers' compensation cases and beyond.
WCK Blog welcomes two very well qualified guest authors and thanks them for a timely and informative contribution.
Jaclyn S. Millner is an attorney at Fitch, Johnson, Larson & Held, P.A., a workers compensation defense firm in Minneapolis, Minnesota. She is licensed to practice 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, Minnesota. She was an editor of the William Mitchell Law Review. Jaclyn can be reached at jmillner@fitchjohnson.com or 612-746-3444.
Gregory M. Duhl is an Associate Professor of Law at the William Mitchell College of Law in St. Paul, Minnesota, 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. Gregory can be reached at gregory.duhl@wmitchell.edu or 651-290-6409. For more information regarding social networking and workers compensation litigation, see Social Networking and Workers Compensation Law at the Crossroads, 31 Pace L. Rev. A free download of Social Networking and Workers' Compensation Law at the Crossroads is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675026.
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