July 31, 2015 by Max Hufton, Associate, Race & Co. LLP
When asked on Monday morning how your weekend was, the expected answer is typically a brief reply that generally things went well, some fun was had or a minor calamity averted. We laugh, smile, swap pleasantries and then off we go to work.
Sometimes, however, people respond more fully, perhaps more honestly, and tell you in detail what really happened. We listen, often in an increasingly awkward “Beam me up Scotty” state, to these tales of woe, supply caring words of encouragement and then move on. Some people we just don’t ask. Some people we stop asking.
Do we apply the same stock response standards to our social media profiles? Do our postings reflect our true state or only our bravest faces belying hidden tales of woe? The fact is, it could be either.
For that reason, when it comes to litigation, the story behind the picture also needs to be told. This story can prove that pictures of joy and excitement in adventurous pursuits posted by litigants on their social media profiles either truly represent their post-accident condition or show only rare best moments in a life otherwise touched by functional impairment and well-masked misery.
A recent case from British Columbia illustrates precisely the considerations to be applied by the trier of fact in weighing the social media image versus private persona. In Tambosso v. Holmes, 2015 BCSC 359, the defendants introduced into evidence 194 pages from the plaintiff’s Facebook page posted between May 2007 and July 2011.
The plaintiff was in car accidents in 2008 and 2010. She alleged that the accidents had significantly impinged on her social and recreational activities and rendered her unemployable. Her evidence at trial was that the accident had caused her to change from a “vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman” to that of a “housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose ‘life sucks’.”
The plaintiff’s Facebook page told a different story. The trial judge noted, “There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident.”
The plaintiff argued that persons posting the events of their life tend to post positive events and activities and portray themselves as social, while avoiding posting negative thoughts events and news. While noting an absence of expert opinion to support that argument, yet broadly accepting its logic, the trial judge relied extensively on the independent evidence of collateral witnesses and a careful analysis of postings in relation to real life events. He reached a conclusion that the plaintiff’s postings, not her evidence at trial, represented the more accurate version of her circumstances.
Key to that determination was the timing of the postings in relation to the prevailing events of the plaintiff’s life. The court contrasted, for instance, the relative lack of postings during a period in which the plaintiff was pregnant and in an abusive relationship, with those periods immediately after the accident and subsequent to her ending the abusive relationship. During this latter period, her postings were prolific and consistent with an active individual engaged in vigorous outdoor pursuits and regular socialization with friends.
The Court concluded that the social media life portrayed by the plaintiff was “completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the Internet.” At the end of the six and a half week trial, the plaintiff asked for $2.6 million. The Court awarded her damages of $36,042.30.
Not every case involving Facebook evidence achieves this extraordinary result. A case is a story and a trial the telling of the tale. Key to success is foremost the development of a coherent and credible narrative. Illustrations enhance the story; they are not the story itself. The potentially devastating use of social media in litigated claims has not gone unnoticed and it is rare now for plaintiff’s counsel not to caution their clients as to the potential risks of posting material to sites with content open to the public.
What then can claims examiners do to facilitate the best use of social media data in litigation and ensure the data is secured while the window of opportunity remains widest open?
Conduct internet searches on receipt of notice of the claim: note maiden names if applicable (many women who change their names on marriage have social media profiles in their maiden names to facilitate “friending” older associates). Also note the names of other likely social media contacts, spouses, other family members, passengers in the same car as the claimant, team members, as possible sources of social media data and search them too. An often overlooked point is that your insured may have access to the claimant’s social media postings, and they of course have a duty to cooperate with their insurer.
If a search within a demographic in which one would anticipate finding a social media presence reveals nothing, consider searching common letter switches (“5” for “S”, @ for “A”). You may have received an email from the claimant, try searching using the name before the @ sign in the email address (people tend to be predictable in their choice of usernames and passwords and as anyone who’s ever forgotten a password or username knows, with good reason).
Perform periodic regular repeat searches pre-litigation. Typically in the acute phase of injury one would expect the most dramatic change in a claimant’s presentation; recording early post-accident postings can be very helpful in highlighting any disconnect in this common sense and generally accepted story line.
Secure copies of electronic data. Privacy settings can and do change, frequently so once litigation is commenced. Having evidence of an active profile immediately prior to retainer of counsel may assist in disclosure applications where privacy has “suddenly” become important to claimants. On a practical note, in addition to printing or screen capturing data, copy the URL and paste it to a document in the file, this provides a direct link to the webpage even where the claimant may subsequently have changed their username and avoids loss of data which you knew at one point to exist.
Data obtained from social media may also have the peripheral benefit of assisting in early identification of potential witnesses and securing contact information for them without need to wait for examination for discovery.
From an ethical standpoint, it is clearly impermissible to engage in subterfuge to try and gain access to data stored on social media sites. Data gathering is restricted to information that can be gained only from public profiles or indirectly from re-posts on “friends” public social media sites.
In summary, be prepared that seemingly very damaging visual information obtained from social media alone may not deliver the result you seek. It is the contextualization of the image and the weaving into the story that increases the chances of success. It is a lucky spider that catches flies with a single stranded web.
Max Hufton is an associate with the British Columbia litigation boutique firm Race & Co. LLP and has served on the board of directors of Canadian Defence Lawyers since 2012.