January DBA Newsletter


By David C. Barnett, Esq. and Samuel S. Frankel, Jr., Esq.

During the past few years we have noticed that insurance carriers and their attorneys are looking at injured workers’ various social media accounts, such as Facebook, as a way to defend a case.  Oftentimes, the insurance carriers and their attorneys draw inferences from pictures, posts, and comments online to show the injured worker is less than credible.  Insurance companies and their lawyers are certainly allowed to show the Court what they find online, although its use in trial may be limited based on the particular facts of a case.  The most common use is to “impeach” a witness – this is a process where outside information is used to demonstrate a witness may not be truthful.  Not only can internet information be used in this way, it can also be used to prove (or disprove) injuries, or demonstrate a particular bias.  Pictures from Facebook, Instagram, and other social media accounts can be used to show someone is not really as hurt as they say (for example, an injured worker claims he is bedridden for weeks, but a Facebook picture shows him participating in physical activities during that time).  We have seen pictures of individuals at restaurants, in social settings, on vacations or trips in different locations, participating in social or physical activities, and firing guns on a range.  The insurance company and its attorneys have produced internet postings where an injured worker has been overly critical of the insurance company or the Employer, the insurance company’s doctors, the legal process, or the Judge himself.  Obviously, this can be quite embarrassing and difficult to explain.

The insurance companies and their attorneys will use all the information they find on the internet to argue an injured worker can indeed return to society, hold down a job, that he is exaggerating injuries or disabilities, or has a “revenge” agenda.  Many times these arguments are simply inferences drawn from a few pictures or internet postings.  However, it places the injured worker on the defensive, having to explain to a Court why certain things were said or done.  Taken alone a few pictures or postings may not sway a Judge, but when added together with other evidence the insurance company may present, it could tip the scales against the injured worker.

It is not just online pictures or postings that the insurance companies review.  Insurance companies and their attorneys will look at social media sites such as Foursquare (Swarm), the “check in” options on Facebook, the “add location” options on Instagram or other mobile picture applications, or even Google Maps to see where you have been.  This information shows places you have visited, who was with you, how long you were there, your activities, and other information.  The insurance companies will compare this information to the narrative reports of doctors, private investigators, and the injured worker’s own answers to interrogatories or depositions.  This information can even be shown to an injured worker’s own doctors, together with other evidence – and may lead to the doctors losing faith in their patient, in addition to losing credibility with the Judge.

The biggest risk to losing a case is when a Judge determines an injured worker lacks credibility – is not believable.  Once a Judge does not believe what an injured worker is saying, the Judge will typically not believe what the injured worker’s doctors say.  Losing a case because the Judge does not believe you is one of the hardest cases to appeal, since it is the Judge’s job to weigh all the evidence, and is within his own discretion to believe – or not believe – the evidence that is offered.

Many people believe changing the privacy settings on their social media accounts protects them.  IT DOES NOT.  Try an experiment:  in your web browser, search for your name using Google or Bing, or some other search engine.  Most likely you will get results showing old Facebook and other social media pages and information – even after you have made that information “private”!  This search is the first thing every insurance company and defense attorney will do when they get a new claim.  Even if information is blocked by privacy settings, it is still on the social media application’s servers, which makes it discoverable through subpoenas.  Although obtaining information from social media using subpoenas may be a little more legally involved and time consuming, it can be done, and information produced this way will contain much more data on you and your friends than a simple Google search.

Social media can be fun.  It provides an almost instant diary of our lives, complete with pictures and commentary.  We stay in contact with friends, co-workers, and discover new ways to experience our lives.  Even the firm has a Facebook page!  The downside to social media is that digital information is permanent – it is never truly deleted or completely hidden.  It may contain embarrassing or compromising pictures or posts.  It may expose your family and friends to scrutiny or questioning.  The information produced may become part of the public record (most judicial proceedings are open to the public).  As another experiment, check out the Wayback Machine at https://archive.org/web.  This internet archive keeps over 400 BILLION web pages saved over time – it is very possible it contains old web information about you!

As you can see, social media activities, although entertaining and fun, can be detrimental to your own claim.  We strongly encourage our clients to avoid social media altogether while their cases are pending, or be extremely careful with their postings if they insist on keeping an online presence.  Frequently delete your cookies and web browsing history, ensure all online backups of your information are encrypted, keep all antivirus software current and running, and ensure the privacy settlings are maximized on all of your social media accounts.  Refrain from derogatory or inflammatory posts on websites, uploading (and downloading!) questionable pictures or videos, or accepting “friend” requests from strangers.  We welcome any questions you may have about your online presence or social media content, so please feel free to contact any of our attorneys about this.