Did I tell you the one about the petitioner in one of my New Jersey cases who was too disabled to work by day but was still fighting in the “squared circle” by night as a professional wrestler?
True story, it really happened.
We busted him with videos he posted himself to MySpace showing him engaged in title fights while out of work and collecting temporary total disability. His attorney argued that “wrestling is fake.” Needless to say, that case got dismissed at trial.
Is using Facebook or MySpace to check claimant activity OK?
Claimants have no “reasonable expectation” of privacy for information posted to a social networking site like Facebook or MySpace and anything they publicly post there is fair game. A recent 75-page law review article concludes that “just as a workers‘ compensation attorney may use informal discovery to observe an employee in a public place, such as a park or a restaurant, so too is an attorney able to observe and search information publicly available online.” Using Facebook or MySpace or any other social network to “check in’ on claimants by viewing their publicly-posted photos, videos, or “wall posts” is A-OK, and any useful information you get can be presented in a workers’ compensation court (or a fraud proceeding).
But what about “private” profiles?
Facebook accounts can have different settings regarding sharing. If a Facebook account has “low” security settings, the general public can access the individual‘s profile by searching the internet or by searching for the person‘s name on the Facebook website. Attorneys and others can discover the individual‘s list of friends, shared postings, photographs, and videos. If the claimant has set “high” security settings, attorneys may still be able to discover that the individual has a Facebook account, but will not be able to view the individual‘s profile or information. If the claimant has a “private” account, posted information (like videos, photos of the claimant, etc) that are not publicly available can be obtained through the formal discovery process.
How about subpoenas to site operators?
Subpoenas to social networking site operators have been allowed by the courts when the discovery sought is relevant to the lawsuit. Obtaining social networking information from the site operator, however, would likely be a very lengthy and costly process – probably not worth the cost and time. The fact that subpoenas can be served serves as a “check” on the employee‘s ability to destroy or hide social networking information in a workers‘ compensation case.
What if the claimant just deletes their profile when we make the request for information?
Deleting doesn’t work – because the social networking site operators keep the information. The Facebook “terms of use” document states:
“If you want to stop using your account you may deactivate it or delete it. When you deactivate an account, no user will be able to see it, but it will not be deleted. We save your profile information (connections, photos, etc.) in case you later decide to reactivate your account.”
In other words – the information isn’t going anywhere even after they delete their “profile”!
How about “friending” the claimant to get access to their private posts?
This is where it gets interesting.
A lawyer printing out images that a claimant has posted themselves and made “public” on a social network is entirely permissible and the resulting images are admissible, just as a video of the claimant made in public would be.
A defense lawyer CANNOT friend a claimant – that would violate the ethical rule against communication with a represented party, unless the claimant (through her attorney) permits the activity (unlikely).
Do New Jersey workers’ compensation courts permit “social networking” discovery?
New Jersey is on the leading edge of this issue. Recently a federal magistrate judge in New Jersey found writings shared on social networking sites to be discoverable. In Beye v. Horizon Blue Cross Blue Shield an insurer sought production of all e-mails, journals, diaries, and communications and the judge ordered the plaintiffs to produce all entries on web pages, such as Facebook and MySpace, which the plaintiffs had shared with others. There is precedent for workers‘ compensation courts to permit discovery of all entries on social networking sites that relate to an employee‘s physical abilities.
Best Practices for WC in NJ?
Workers‘ compensation defense attorneys should ask in their interrogatories, or other form of discovery demand pursuant to their state‘s rules governing discovery, for the names of any social networking sites used by the employee and request copies of all relevant photographs, videos, postings, communications, and discussions from social networking sites relating to the employee‘s physical or employment abilities.
However, in NJ, there are no depositions and interrogatories are allowed in certain cases only (occupationals). Therefore, if you suspect your New Jersey claimant may be leading a “double life,” and in certain other high-exposure claims, a motion for specific discovery can be filed seeking the names of any social networking sites used by the employee.
But, are the information, videos, and photos we obtain admissible in workers’ compensation court?
Workers‘ compensation judges generally have broad discretion and are not bound by state or federal rules of evidence, and therefore social networking evidence may be admitted even more liberally in workers‘ compensation courts than in state or federal court.
Recent New York Workers’ Compensation case involving Facebook fraud.
On September 13, 2010, Alexis Muniz was sentenced to three years probation for stealing $8,975 in workers’ compensation benefits. It turns out she was working full-time while collecting benefits – and was stupid enough to post about her “dual life” on Facebook – boasting about her income! Click here to see the whole story.
Have any questions about this article? Contact Greg Lois
