Social Media Discovery: A Necessity for the Claims Toolbox
Not surprisingly, the amounts of personal information shared on social networking sites continues to rise. We first wrote about this trend, and its implications for insurers, back in 2011.1
Claim professionals, and the data mining experts they engage, have long known that social media can be useful as an investigative tool for uncovering relevant information on claimants. The information obtained via these platforms may contradict claims or statements made by a claimant. It can also provide further confirmation of the damages or injuries being claimed, therefore assisting with establishing proper reserves and moving a claim towards resolution.
The scope and depth of discovery conducted on social media to obtain relevant information during litigation is now well established in many jurisdictions and has become better defined. In New York, for instance, the scope appears to be expanding. As an example, a New York appellate court recently issued a decision further opening the door to valuable social media data in a personal injury case.
In the Vasquez-Santos2 litigation, the court heard an appeal from a ruling denying a defendant’s motion to compel access to a plaintiff's devices, email, and social media accounts by its third-party data mining experts. The plaintiff alleged he sustained injuries in a motor vehicle accident, rendering him disabled and incapable of performing activities he had enjoyed before the accident (including playing basketball). During discovery, defendants uncovered photos posted to Facebook of the plaintiff playing basketball after the accident.
The appellate court sided with the defendant, and the photos became part of discovery and the trial record. The court did place some restrictions on data mining. Items were limited to only those sent or posted after the accident and items discussing or showing the plaintiff engaging in basketball or similar physical activities. The appellate court pointed to the 2018 Forman3 decision from New York’s highest court for further guidance on how courts should evaluate requests for discovery of information from social media accounts.
The court confirmed that parties in litigation are entitled to discovery of all relevant, non-privileged information. Social media content, for the most part, is no exception despite the privacy settings by the account user. Social media exploration and evidence should be considered in any claim of significance given its potential impact and influence in claims handling.
- Gen Re Insurance, "Social Media - Another Item for the Claims Toolbox", Insurance Issues, December 2011. Available upon request.
- Vasquez-Santos v. Mathew, NY Slip Op 00541 (N.Y. App. Div., 1st Dept 2019).
- Forman v. Henkin, 2018 NY Slip Op 01015 (N.Y. Ct. App., 2018).