Facebook a very useful tool in defending AB Claims

Alex Vizer | October 15, 2009

Insurance companies are starting to examine social networking sites such as Facebook in hopes of gaining information that will allow them to better defend personal injury claims, said Jennifer Malchuk, a partner at the law firm of Hughes Amys LLP. 

Malchuk made her remarks during the 2nd Annual Accident Benefits Experts Seminar, held at the Ontario Bar Association on October 8, 2009. She outlined several tort litigations in which the courts have determined that information posted on social networking sites are documents that are admissible in court proceedings, and cited a recent accident benefits case where an insurer successfully made the same argument.

Once they are classified as documents, the profiles cannot be altered or deleted.

Cast A Wider Net
In addition to examining the plaintiff’s profile, Malchuk encourages insurers to take a look at the profiles of the plaintiff’s friends and relatives when preparing their defense.   “There is an acceptance that people are using these sites to share information about themselves and what they do on a day to day basis,” Malchuk said, “when you are dealing with an accident benefits claim, it’s great to know what someone is capable of doing.”

Document Findings
Acknowledging the ever-transforming nature of websites, blogs and social networking sites, John Young, a computer forensics examiner at Giffin Koerth, advises lawyers to preserve online data in a variety of mediums to quell any doubts that it was manipulated to bolster their case. “It’s always best to have at least two methods to capture the data,” said Young. 

Even those who restrict access to their digital profile can be fair game. One case saw the judge instruct the plaintiff, whose privacy settings allowed only those on his friends list to view his profile, to produce copies of his Facebook account for the defense. In a decision that dealt a blow to digital extroverts, the judge noted that anyone who had as many Facebook friends as the plaintiff (316) cannot reasonably view their account as being truly private.

Malchuk encouraged lawyers to begin their online surveillance as soon as possible, noting that growing awareness about the use of social networking sites in legal proceedings can results in plaintiffs deleting damning photos and information from their accounts as soon as legal action is launched.

The efforts of those who try to alter or erase their online history may not be entirely successful, said Young. He observed that there are several ways in which deleted data could be recovered, noting that accessed online pages are often stored on a computer’s hard drive for some period of time.

Even Destroyed Data is Good Data
Even if the exact content of a web site cannot be restored, Young explained how residual data, which the alteration or deletion creates, can still be of value. While the erased data itself may not be recoverable, residual data can show the time and date in which that data was erased, allowing lawyers to show that a plaintiff altered documentation in defiance of the court or accessed a web site they were not supposed to view.

Young also reminded insurers that in addition to the web, personal computers, electronic gadgets and PDA’s contain a wealth of information. While examining the GPS device of a man who put in a claim because his car has been burglarized, Young discovered that the man’s last trip before the incident had been to a hardware store. A visit to the store yielded video surveillance footage showing the man purchasing the crowbar that was used to break into his vehicle, which was left at the scene.

The prevalence of smart phones, which capture a large variety of data, can also be useful to lawyers representing insurers. “The iPhone is the absolute worst phone to have if you are a criminal,” said Young. “It captures everything.” That capability means that it is possible to examine a photo taken on the device and use the phone’s GPS coordinates to determine the exact location at which it was taken. Combine that with the ability to determine the time at which the image was created, and insurers have a powerful new way to verify if the claims that plaintiffs make regarding the severity and impact of their injuries corresponds to reality.