Wednesday, June 10, 2009

Surfing Up the Work Comp Claimant

There is a classic 1960's cartoon about Mr. Peabody, a dog, and his boy, Sherman, who travel back in time using their WABAC machine to explore improbable moments in history. Investigating a claimant on the internet in a Missouri worker’s compensation involves the same thing, except the dog is usually not as erudite. Worker’s compensation defenses often center on two fronts: did claimant’s impairment arise at work, and what is the impairment worth. Googling a party or surfing through social web networks can go way back too, like the eager boy Sherman, and can tag claimants who malinger or commit fraud.

Any person obtaining a recorded statement or deposition should inquire whether on not a claimant participates in social network web sites. A law firm or insurance may be prevented from due diligence to actually search social networks, ironically, by their own IT departments, who filter access to social network sites as distractions to productivity.1 In light of the popularity of such sites, especially among Gen X claimants, the failure to even inquire about participation is difficult to justify. Seasoned old defense dogs cannot ignore the internet and rely on deposition outlines drafted when the Selectric was cutting edge.

There are over 100 social network sites.2 Popular cites such as Myspace and Facebook boast over 200 million members each.3 The participation in social web sites is now widely accepted. Inquiring about participation on such widely-accepted sites does not annoy, embarrass or oppress a claimant.4

The content of social network sites may reasonably lead to discoverable evidence. Sites may confirm a claimant’s employment or educational history or substantiate claims of impairment. On the other hand, claimants may also disclose hobbies or physical activities inconsistent with claims of current disability. Photographs or video may impeach claimants, or document indiscrete behavior that taints a claimant’s overall credibility. Social network sites maintained by roommates or spouses may including photographs tagging claimant in activities inconsistent with their reported physical limitations.5 Indiscrete postings from "friends" may also impeach claimant’s credibility too. Electronic stored information on company networks or on cell phones such as text messages and photographs may provide critical accident scene information or clarify the scope of initial reported injuries.6

Social web sites may be divided between "public" information, available to anyone who has access to a modem, and "private" information, which may be available only by permission. Chat rooms or job posting services like, similarly, may open the door to more discoverable information. Computer archive programs such as "wayback" can recover many pages that have been removed or updated, and are invaluable resources.7 Many postings, presumed to be ephemera, are rarely destroyed completely merely by hitting delete. Current inexpensive software can easily capture webpage screenshots8 as potential exhibits.

Reported appellate decisions do not address ethical concerns and have dealt primarily with the internet social sites as the new playground for child molesters. Some recent decisions have addressed the role of the internet and social web pages in personal injury claims. Missouri informal advisory opinions remain silent on proper or improper methods to discover contents of social web networks. Discovery of private social web postings recently has been criticized as unethical in Pennsylvania. The question was whether a third party could pose as a "friend" to gain access to a private section of a social web page. The attempt to access private portions of a website using a proxy violates ethical rules, and the committee compares the activities to having a videographer sneak into a house posing as a utility worker.9 Screening claimants by investigating social networks, too, before returning a claimant to the work place, may raise other ethical issues too.10

Compelling Production
Missouri has no reported cases regarding a claimant compelled to disclose social web pages in a workers’ compensation case.11 The issues in other jurisdictions arises whether the party has a reasonable expectation of privacy.12

A claimant may have waived any reasonable expectation of privacy to social site postings when participating on such sites on company networks instead of from private home computers.
A person who publically posts has no legitimate expectation of privacy. Guest etal v Simon L. Leis, etal 255 F. 3d 325 (6th Cir. 2001)(obscenity case)
Other jurisdictions have divided opinions regarding discovery in civil cases of social sites. In Mackelprang v Fidelity National Title Agency of Nevada, Inc. 2007 WL 119149 (D. Nev. Jan. 9 2007), a sexual harassment claim, the court prevented a motion to compel production of private MySpace pages as a mere fishing expedition when the defendant only had a suspicion regarding possible contents. Recently, a district court in Colorado allowed discovery of Facebook, Myspace and Meet-up to produce postings, noting allegations of loss of consortium, and that parties had already stipulated to confidentiality of discovered material. Ledbetter v Wal-mart Stores, 2009 WL 1067018 (D. Colo. April 21, 2009).

Admitting Evidence
There are no provisions within the Missouri worker’s compensation statute addressing admissibility of electronically stored information (ESI). Chapter 287 has no equivalent to federal Rule 16 or Missouri Rule 59.01 practice to request parties admit to the authenticity of electronic documents such as copies of web pages.

Other jurisdictions have different levels of acceptance of ESI evidence. In St. Clair v. Johnny’s Oyster and Shrimp, Inc. 76 F. Supp. 2d 773 (S.D. Tex. 1999), the court sharply criticized the internet as "inherently untrustworthy"and is "largely a catalyst for rumor, innuendo and misinformation."

Federal rules require ESI to be relevant (rule 401) and authentic (rule 901-902).13 When the website statements are made by a claimant, such statements overcome a hearsay objection raised against non-parties. A website can be authenticated by circumstantial evidence. See United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (employee’s e-mail), Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1153-54 (C.D. Cal. 2002) (admitting website postings as evidence due to circumstantial indicia of authenticity, including dates and presence of identifying web addresses).

Resources on the internet, including social web pages, provide glimpses way back into a claimant’s past to assess current claims of disability. Social web pages can be a vast wasteland too, far worse than television. Data may be as unreliable as a typical ad in the personals and should not be over-relied upon as a defense. On the other hand, it can show claimants doing improbable things deserving of America’s Funniest Home Videos. Employers who did not investigate years ago because investigators were too expensive can now uncover more information quicker with only a mouse click. A claimant who posts to the web, posts to the world, including every risk manager who decides what bills to pay and what the case is worth. Such postings are now another source of information to be considered. The indiscrete claimant, like the often-befuddled young Sherman, can find himself in places he never expected to be, when he his own tangled web postings are served up to the court.

1. See Sinrod, Can Social Network Co-exist with the workplace? CNET Dec. 19, 2007


3. see ftn. 2.

4. Rule 56.01 prohibits such conduct. Inquiries may be embarrassing or harassing, however, such as inquiries about dating sites implying infidelity or membership in sites with socially unacceptable sexual proclivities. The issue of preserving internet reputations has created a new cottage industry of internet reputation management consultants. E.g. IRM Consultants advertisement:

5. See. Facebook drinking photos show parole violation in fatal DUI Case, Chicago Tribune, June 5, 2009.,0,1469717.story

6. Such data may be sometimes overlooked as statements subject to production under 287.215.


8. One example is Techsmith’s SnagIt product.

9. Opinion 2009-02 (March 2009), Philadelphia Bar Association.

10. White, Recruiters Use the Internet to Screen Job Applicants, Wall Street Journal Oct 12, 2004,, ; See Hayes v Show Me Believers, 192 S.W.3d 706 (Mo. 2006) (recognizing cause of action under 287 based on claimant’s previous litigation history of claims against other employers)

11. Most Missouri Commission cases have been somewhat dismissive of internet sources used by experts Crowell v Sigma Chemical Co., DOLIR 6-28-02 (reliance on chat rooms criticized as not authoritative) , Rufer v Monet Metals, DOLIR 10-31-08 (expert criticized for using internet sources instead of textbooks).

12. Levine, Are Social Networking Sites Discoverable?

13. See Lorraine v Markel American Ins. Co., No PWG-06-1893 (D. MD 2007)(detailed discussion, rejecting admission of e-mails on motion for summary judgment).