Bar News - August 17, 2012
Workers’ Compensation & Personal Injury: Using Social Media Evidence in Workers’ Comp Cases
By: Elizabeth M. Murphy and Sean P. Flanagan
As social media websites continue to increase in popularity, most Americans now have a Facebook page, a Twitter account, a LinkedIn profile or a Pinterest board. Through the use of such social networks, many workers’ compensation claimants make public considerable information about their lives that may serve as relevant evidence in a workers’ compensation hearing. How can this information be used in the litigation of a workers’ compensation claim?
The workers’ compensation system is designed to provide injured workers with a prompt and efficient resolution to disputes between the worker, the employer and the insurance carrier. As such, lengthy evidentiary disputes over the introduction of electronic evidence are not typical. NH Department of Labor regulations provide that the purpose of a hearing "is to permit the department or the board to acquire sufficient information to make a reasoned decision and to afford persons who might be affected by a decision the opportunity to present evidence and statements prior to the making of that decision." Lab 201.02; see also RSA 281-A:43.
The primary evidence submitted at Department of Labor ("DOL") hearings tends to be medical evidence. Parties should consider whether introduction of evidence obtained from social media websites will aid the hearing officer in his or her determination.
When using evidence obtained from a social media website, parties must be cognizant of evidentiary rules and ethical obligations. Rules traditionally applied to non-electronic information should be considered when determining how to address issues arising from the use of social media. See Jaclyn S. Millner, Gregory M. Duhl, Social Networking and Workers’ Compensation Law at the Crossroads, 31 Pace L. Rev. 1, 11 (2011). A DOL hearing officer is not "bound by common law or other rules of evidence or by common law or other rule of procedure other than those specified under Lab 200 and RSA 541-A." Lab 204.7(k). In relevant part, Lab 204.07 (k) further provides: "Any probative and relevant evidence shall be received by the hearing officer during the course of the hearing."
Social media evidence can be beneficial in an extent of disability hearing under RSA 281-A:48. Evidence gathered from various social media websites may be introduced by defense counsel, similar to traditional surveillance evidence, to demonstrate that an injured worker is not as disabled as he/she may be testifying to or have told their doctors. Similarly, a claimant’s attorney may consider introducing an injured workers’ blog or series of Facebook posts to demonstrate how a claimant’s life has been affected by the workplace injury.
Facebook posts contemporaneous with an alleged date of injury may have relevance to both parties in a causation hearing pursuant to RSA 281-A:2, XI, XIII. Attorneys should consider a method to authenticate the evidence prior to introducing it at a hearing.
Lab 204.07 (b) provides in relevant part: "Parties who are introducing non-medical evidence shall make all other parties aware of such evidence and submissions no later than two business days prior to the scheduled hearing." Typically, parties will advise opposing counsel that they have surveillance evidence which they intend to rely upon, but they do not disclose the actual footage. Likewise, under Lab 204.07 (b), there is an obligation to inform opposing counsel of the intention to introduce electronic or social media evidence.
The Supreme Court’s analysis in Appeal of Carnahan, 160 N.H. 73 (2010), is beneficial to consider if attempting to introduce new social media evidence at a Workers’ Compensation Appeals Board ("CAB") hearing. In Carnahan, a DOL hearing officer reduced the claimant’s benefits to the diminished earning capacity rate after a May 2008 hearing. At the appeal hearing, in September 2008, the carrier introduced video surveillance evidence obtained after the DOL hearing to demonstrate that the claimant was capable of more physical activity than he had previously reported to his medical providers, the DOL, and the CAB. The Supreme Court found that the CAB had properly considered the video as evidence of the claimant’s physical capacity as of May 2008 and determined that the claimant had been "less than forthcoming in his testimony regarding his actual physical abilities."
Evidence gathered from various social media websites in the period between a DOL and CAB hearing will likely be considered, if relevant to the claimant’s condition, at the time of the underlying DOL hearing.
With these considerations in mind, claimant’s counsel will likely discuss the implications of posting updates on social networking websites with their clients. See Millner, supra at 26. When doing so, counsel should consider ethical rules that affect the use of social media. For example, a claimant’s attorney would be in violation of the N.H. Rules of Professional Conduct and guilty of spoliation of evidence if he or she were to instruct a client to delete Facebook photos or posts. See N.H. R. of Prof. Conduct 3.4(a) (A lawyer shall not "unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act . . ."); see e.g. Lester v. Allied Concrete, Co., Nos. CL.08-150, CL09-233 at 23 (Va. Cir. Ct., May 27, 2011) (Holding attorney’s advice to client to delete Facebook posts equated to spoliation); see Millner, supra at 27-28; see also Cameron G. Shilling, Electronic Discovery: Litigation Crashes into the Digital Age, Vol. 47, No. 1, N.H.B.J. 22 (2006).
An initial Google search of the claimant’s name can help both parties to learn more about the claimant and whether he/she uses social media sites. However, defense counsel must be cautious in using social media to investigate a workers’ compensation claim. Courts have generally found that information available publicly on social media websites is fair game when it comes to discovery. (See generally, Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009); see Millner, supra at 23.) Pictures, wall postings and links publically available on a litigant’s Facebook page, unprotected by privacy settings, are generally admissible without raising privacy concerns.
Ethical issues can arise when an opposing attorney seeks information stored privately on a claimant’s social media pages. For example, N.H. Rules of Professional Conduct, Rule 4.2 prevents a lawyer from communicating with a person that the lawyer knows to be represented by another lawyer unless there is consent from the other lawyer or authorization by court order.
A "friend" request aimed at a represented claimant would violate Rule 4.2 unless the claimant’s attorney or the Department of Labor had previously consented to such communication.
In using social media for purposes of a workers’ compensation hearing, parties must consider the best methods to obtain and preserve the information found on social media websites. Counsel must also consider whether the information will aid their position at a workers’ compensation hearing, how the information will be authenticated at a hearing, and be sure to promptly disclose the intention to use such evidence before the hearing.
Elizabeth M. Murphy is a member of the Devine Millimet & Branch Workers’ Compensation Practice Group. She represents workers’ compensation insurance carriers and self-insured employers. Sean P. Flanagan is a member of the Devine Millimet & Branch litigation department, concentrating in workers’ compensation.