By Eric Pesale

Insurance fraud is becoming increasingly more prevalent, costing companies roughly $80 billion per year in payments. This not only impacts the insurance companies themselves, but also innocent policyholders in the form of skyrocketing premiums. It’s why almost all states have laws expressly outlawing insurance fraud involving workers’ compensation injuries, lost property claims and automobile damage.

Social media sites have become places to find relevant content related to cases, as often times, they entail published posts, images and status updates that contradict lawbreakers’ claims. Publicly-available social media posts and images, along with restricted-view or private posts that a “friend” or “follower” of the user has permission to view, are not subject to the same Stored Communications Act (SCA) protection that safeguards wholly-private social media content, making them fair game for eDiscovery. In fact, courts have held that even restricted-view content is not protected by the SCA under the law’s authorized user exception if (i) access to the information was “authorized” and not made under pressure or coercion (ii) “by a user of that service,” (iii) “with respect to a communication…intended for that user.”  

Recent cases also underscore how powerful social media screenshot evidence can be for curtailing insurance fraud. In Nationwide Mutual Fire Insurance Co. v. Almco, Ltd., 2016 WL 1452327 (D.D.C. Apr. 13, 2016), for example, the defendant—a nightclub and pool hall that served alcohol to patrons and hosted live entertainment—requested its business insurance provider, Nationwide, to indemnify and defend it against claims arising from a shooting incident that caused injuries to customers. However, the defendant lied in the insurance application by stating that the business was intended to operate as a deli. Nationwide, therefore, sought a declaratory judgment stating that it was no longer liable to the defendant because the owner made a material misrepresentation in the insurance application, and offered screenshots of the nightclub’s Facebook page to support this. The court considered the social media screenshot evidence and ultimately ruled in Nationwide’s favor.

Social media screen capture evidence, therefore, can be a powerful tool for deterring litigation and defeating claims. There are other ways you can use screen-captured evidence during future legal matters, such as:

  1. Sources of Information for Deposition Questions and Further Research. Attorneys can use authenticated screenshots of social media content as springboards for crafting effective deposition questions and finding relevant evidence that could disprove a claimant’s insurance claim. Facebook conversations, LinkedIn posts, and suspicious Tweets can all give lawyers and investigators potential leads they can use to clarify relationships between potentially-guilty parties, constructing timelines and refuting the claimants’ alibis or other claims.
  2. Bargaining Chips During Claim Negotiations or Settlements. Authenticated screenshots can also serve as leverage during settlement negotiations to talk parties into accepting lower settlement amounts, or to prove the legitimacy of the claimant’s claim. Any evidence that goes against the claimant’s claims can be used to not only chip away at the individual’s chances of winning at trial, but also to reduce his or her likelihood of walking away from mediation or settlement negotiations with a substantial award. Incriminating post updates, live videos and social media conversations can also give insurance companies solid grounds for denying the claimant’s claims outright or to force the claimant into accepting a lower, company-friendly settlement.  
  3. Admissible Evidence Against the Claimant in Court. Even if insurance claims do end up being litigated at trial, introducing incriminating screenshots of posts or photos into evidence can decrease the claimant’s chance of prevailing at trial—and even subject him or her to criminal charges. One woman in Arizona learned this the hard way after her insurance company found Facebook photos showing her wearing the “lost” wedding ring that was part of a nearly $27,000 claim that she had filed. In the end, the woman was required to not only reimburse the insurance company and Arizona’s Department for Insurance for both the claim money and investigative costs, but also plead guilty to two counts of insurance fraud.

Social media evidence can be invaluable for litigators and claims investigators working on insurance defense cases. Recent changes to the Federal Rules of Evidence will make using this type of evidence in court easier by treating web-collected evidence accompanied by expert-backed affidavits as self-authenticating evidence. Although capturing numerous social media profiles and posts for relevant evidence can be an all-consuming process, it doesn’t have to be. Page Vault provides the tools and services to help legal professionals easily collect and use authenticated social media evidence at trial.

This post was authored by Eric Pesale, an attorney who writes about eDiscovery, data security and other legal topics for law firms, publications, and companies, and is the founder and chief legal contributor of Write For Law. He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in CSO, the New York Law Journal and Above the Law. Eric can be reached at eric@writeforlaw.com or on Twitter at @ericpesale.