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The Discoverability of Profiles in Social Media and its Effects on Litigation And Evaluation of Claims

Social Media and Lawsuits

Social media has become one of the biggest forms of communication in the world, with millions of people using one form of social media or another to stay in touch with friends and family. Facebook remains the largest social network. However, people of younger ages use Instagram, Snapchat and Twitter. Other sites, such as Pinterest, Tumblr and Flickr are also gaining popularity.

Many attorneys representing plaintiffs routinely instruct their clients to refrain from the use of social media. Some attorneys have even amended their retainer agreements to require their clients to refrain from posting to social media for the duration of the lawsuit. However, it is not unusual to find a plaintiff posting to social media despite warnings from their legal counsel.

Therefore, social media is an area of investigation that should not be ignored and, if possible, should be undertaken before a case is even in suit, as insurance companies may obtain invaluable information that may assist them in evaluating a claim and, perhaps, resolving claims in their infancy.

The Standard for Social Media Discovery in New York

In seeking social media related discovery in New York, the standard for discovery is what is "material and necessary" and the test used by the courts is one of "usefulness and reason." The courts, however, have recognized there is no reasonable expectation of privacy when someone publishes something in the form of public communication where the user has a public social media profile.

Conversely, if the user does not have an "open page" the courts have held that the mere possession and utilization of a Facebook account is an insufficient basis to compel a plaintiff to provide access to the account or have the court conduct an in-camera inspection of the account's usage. Tapp v. NYS State Urban Dev. Corp, 102 AD3d 620 (1st Dept. 2013).

In New York, the courts have moved to a two-prong test to determine the discoverability of social media-related postings:

1. The content in the profile must be material and necessary and, if so,
2. The court must then balance whether the production of the content will result in the violation of the litigant user's right to privacy.

Under this test, therefore, defense counsel must demonstrate a good faith basis for making a request for the discovery by showing with some credible facts that the plaintiff subscriber has posted information or photographs/video that are relevant to the facts of the case at hand. In order to prevail in this argument it is incumbent that defense counsel narrowly tailor the discovery demand to limit the demand to content that is relevant to the plaintiff's condition and claims.

Early Social Media Monitoring

Given the possible limits to social media discovery, insurance companies should attempt to determine whether a claimant has a social media platform as soon as reasonably possible, even before a claim is put into suit. A review of the social media platform of the claimant should be conducted, and the result of that search should be electronically saved and categorized before plaintiff's counsel has the chance to advise the claimant-litigant to make the profile completely private or instruct the client to stop posting to the site altogether.

Early social media monitoring may lead to statements, photographs or even videos that could have the potential to adversely impact a claim from both a liability and damages standpoint. Therefore, insurance carriers should make a practice of early social media monitoring as favorable results can save the insurance company thousands of dollars in the long run.

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