Cleaning Up Your Image

Everyone is doing it. Society, especially the younger generations, spend countless hours every week on social media websites. The names of the websites have been left out of this article to protect the innocent, but we all know people who post pictures and write blog entries about their daily activities.

Most of this information is retained by these social media websites well beyond the date of the initial posting. What happens though when that person posting on the website decides to file a claim against someone or files a lawsuit and decides to “clean up” their social media presence? Spoliation issues arise when this evidence is destroyed or altered in light of a claim or lawsuit.

Often, the vehicle to obtain the social media information is via discovery request or a preservation letter. The litigation hold or discovery request is sent to the claimant/plaintiff at the very beginning of the litigation process. Routinely, one would request the account names, passwords and web addresses for a standard period of time (maybe five years).

The typical situation that a claims handler or attorney will encounter involves a claimant/plaintiff who decides to post evidence (photographs or statements) on a social media site that are contrary to their assertions in the claim or lawsuit. For instance, an individual who has testified that he or she has physical limitations from an accident that prohibits him or her from engaging in strenuous physical activities and then posts pictures of a rock climbing vacation or pick up basketball game. The postings could also involve character evidence that could be used at trial.

Another goal of the discovery request is to look into potentially fraudulent objectives. There have been instances where the plaintiff even staged their accident and placed that information on social media websites to which the insurance carrier SIU department was able to track down information.

What is Spoliation?

Spoliation is typically defined as the intentional (or some states negligent) alteration, tampering or destruction of evidence. Depending upon the jurisdiction, a party who has been deemed to have spoliated evidence could be subject to a negative inference being read to the jury or steep monetary fines/awards. Some jurisdictions even treat spoliation as an independent cause of action. The term “evidence” has been determined by the courts to include postings including photographs placed on social media websites.

The most infamous case dealing with this issue is Allied Concrete Co. v. Lester. In that case, Lester and his wife were in a vehicle that was struck by an Allied Concrete truck. Lester’s wife died in the accident and he received a $8.5 million jury verdict at trial. After the trial, Allied Concrete filed a post trial motion for sanctions against Lester and his attorney and alleged that they “intentionally and improperly” destroyed evidence on Lester’s Facebook account.

In essence, Allied Concrete sent a discovery request to Lester’s attorney requesting all of Lester’s Facebook posting and photographs. Allied Concrete’s attorneys had already seen one photograph of Lester on Facebook wearing a shirt that said, “I ♥ hot moms.” Upon receiving the discovery request, Lester’s attorney instructed his paralegal to contact Lester and tell him to “clean up” his Facebook page because “we do NOT want blow ups of other pics at trial.” Lester proceeded to clean up his account and they produced a sanitized version of the Facebook account. Allied Concrete’s attorneys then subpoenaed Facebook and found the missing pages. The trial court sanctioned Lester $180,000 and his attorney $542,000 for spoliation of evidence. This is particularly interesting because the “cleaned up” photographs/evidence were eventually discovered and still used at trial.

Determining Spoliation

Different jurisdictions look at various factors to determine if spoliation has occurred. The general factors however are:

• Was the evidence in the party’s control?
• Was there actual suppression or withholding of the evidence?
• Was the evidence destroyed or withheld relevant to the claims or defenses?
• Was it reasonably foreseeable that the evidence would be discoverable?

In the Gatto v. United Air Lines case, the court found that the plaintiff had committed evidence spoliation when he deactivated his Facebook account therefore causing Facebook to delete all of the information after 14 days. The plaintiff in that case had executed an authorization for the defendant’s attorneys to obtain his Facebook records before he deactivated his account. The court ruled that the defendants were entitled to have a negative inference read to the jury.

Preserving Evidence

The underlying theme in these situations is to make sure that the claimant/plaintiff is put on notice to preserve the evidence. Most individuals probably would not think that their social media content would be considered evidence from a litigation standpoint, so sending a preservation letter or a discovery request would probably satisfy the notice requirement for most jurisdictions. This is a rapidly evolving area of the law and should continue to expand over the next few years.

As attorneys and representatives for insurance companies, we need to be cognizant of the ever-changing dynamics in our society and industries. These changes will not only affect the way claims are adjusted on the front end, but also the way they are litigated up to, and through trial. Hopefully, as we all become more and more fascinated and familiar with the technological advances of social media, we also keep in mind that “big brother” really is watching all of us and that text, post, email or picture we share may potentially be used in some litigation presently, or at some time in the future.