6/14/2016

Is Social Media a Friend or Foe in Fraud Investigations?

How to use information found on the Internet without having it turn on you.

By Kelly Fox

The world of social media is growing so quickly that it is nearly impossible to keep up with all of the popular blogs, networking sites, and social media outlets. Personally, my 12-year-old son is my best source of information on what sites and apps are being used in any given week. The middle school set apparently has the technological insight that investigators, claims professionals, and attorneys can only hope to understand when handling fraud claims.

Unfortunately, child labor laws prohibit me from putting my son to work (officially), so I find myself forced to navigate this landscape on my own. The universe of possible information you can pull off the Internet on people, places, and things today seems infinite. So how do we use this information without having it turn on us?

Investigation Phase

Most of us are tech-savvy enough to know how to run an insured’s or plaintiff’s name through Google to see if anything obvious comes up. If we are lucky, we have an assistant or a paralegal who can check dockets and criminal records for us. However, the ability to use social media as an investigative tool goes so much deeper than those types of searches, and most of us don’t know how to gain access to that information. One option is to train or hire someone in your business or firm who knows how to conduct the type of deep data-mining searches that one needs to truly scour the Internet for information.

Another option would be to use one of the many investigative companies that specialize in this type of social media investigation work. Typically, these searches cost only a few hundred dollars and can yield hundreds of pages of data and photos and even, on occasion, videos that affect the claims being made in your case. The best part is that, depending on your jurisdiction, the report might not even be discoverable by the opposition.

Even if the report is discoverable, you may still be able to hold it until after the plaintiff or insured has given sworn testimony and potentially perjured themselves. Using a company to conduct these searches is a very cost-effective option to get a great jumping-off point for areas of investigation. Of course, depending on the age demographic of the person you are investigating, the amount of information and the sources can vary greatly.

Many of these investigation companies also sell a version of their proprietary software that you can purchase for your firm or business. For a one-time upfront cost, you have access to that technology right at your fingertips to use in every case, on every party, and even to investigate witnesses.

Social media also can be an invaluable tool in determining connections between multiple individuals involved in a particular case or investigation. You would be amazed at the type of connection matrix that can be composed by determining relationships between multiple individuals. The social media footprints that we all leave along the various programs and applications we use provide much more than just the information that we post or share. They also provide infinite information regarding those individuals to whom we are connected. This information can give claims professionals and attorneys a great head start regarding connections and relationships before ever speaking to a party or insured.

Litigation Phase

The access to social media investigation materials varies greatly across different jurisdictions. Navigating the legal landscape of social media impeachment evidence is still new to both attorneys and judges. There is very little appellate case law regarding the use of and access to social media materials. As a result, the use of such impeachment material is based in large part on the lower court decisions in any given region.

Attorneys hoping to gain access to such information should first familiarize themselves with the applicable case law. For instance, some jurisdictions will not allow access to private social media pages or applications unless counsel can first establish that there is discoverable material on the public portion of that party’s social media pages. That makes it crucial to begin your social media investigation as soon as possible after litigation begins. Keep in mind that issuing a subpoena to compel production of social media material is often the fastest way to ensure that plaintiffs shut down their pages or make their information private.

Additionally, it is common for plaintiff’s attorneys to counsel their clients close in time to a deposition or a trial to be mindful of social media postings. Because of that, it often is easier to find information early on in the case before those phases of the litigation. Plaintiffs tend to be less cognizant at the start of litigation about what they are putting out on the Web for the world to see. Further, if a plaintiff’s social media pages are open or public, it is often possible to search back in their history to see what was being posted at the time of the subject accident or incident. Those postings from the days and weeks immediately following the date of loss often can be a goldmine of impeachment, motive, and bias information. Just don’t forget to save and print any information you obtain in case the page is later taken down or made private.

Once social media information has been obtained during litigation, the next critical issue becomes how to admit or introduce that information into evidence. It is important to keep in mind that the relevant dates on postings and photos that are pulled off social media are not always accurate, especially since it is common for social media sites to post flashback photos from posts dating back months or even years.

Not all photos posted on social media are taken and posted simultaneously. For instance, photos may populate on certain social media websites on a particular date despite the fact that they were taken at an entirely different time and location. Obviously, these date discrepancies can create a huge issue when being used to cross-examine a plaintiff on the stand. Often information regarding when and where photographs were taken can be obtained from data embedded in the photo. This is another area involving the use of social media that can be developed through the use of a good investigator.

In many jurisdictions, evidence obtained as impeachment material is not subject to traditional discovery rules; therefore, social media investigation materials do not need to be produced to opposing counsel if they are being used to impeach false testimony given on the stand. When this type of investigative material is used properly at trial, it quite literally can make or break a case. By knowing what information you have developed during your investigation, you can paint a lying plaintiff into a corner and then eviscerate them with impeachment material.

In the context of litigation, there are few more satisfying feelings than using a plaintiff’s own social media postings to reveal deception. So grab an ice cream with your favorite 12-year-old and figure out how to make social media investigations your new best friend in litigation.



Kelly Fox is a partner with CLM Member Firm Gerolamo, McNulty, Divis & Lewbart. She can be reached at (215) 790-5066, kfox@gmdlfirm.com. www.gmdlfirm.com.

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