Jason Sullivan, a trial attorney specializing in subrogation claims, presented on the value of using social media in subrogation claims at a session called “Friend or Unfriend: Can Social Media Help or Hurt Your Case?” at the NASP Annual Conference in Orlando, Florida. Jason discussed current social media trends as they apply to the subrogation process, available resources and tools, and the dynamics around privacy and ethical concerns.
The Age of Data Collection & the Death of Information Privacy
Today, companies constantly collect data from users – everything from Facebook to LinkedIn and Waze. They use this data for a variety of reasons, such as advertising and marketing. The reach of social media is wide; according to a Pew Research Center survey on social media use, in 2022, 84% of people aged 18-29 used social media in some way. For people 30-49, this number drops to 81%, 73% for ages 50-65, and still 45% for people 65 and over.
So, while the number drops as age rises, there is still a significant percent of the older population online. Then when you factor in the digitization of public records like addresses, marriages, lawsuits, auditors, etc, there is data on nearly everyone somewhere.
Additionally, it is nearly impossible for users of social media platforms to remain private; sometimes even the companies cannot control everything. Even if they apply specific privacy restrictions of the given platform, if they have a friend whose data is not as private, this is a route into your data as well.
How Does Social Media Change a Subrogation Investigation?
For attorneys experienced in subrogation cases, we know that service is sometimes the most frustrating part of the subrogation process. Especially in uninsured and underinsured motorist claims, it can be hard to track down an evasive tortfeasor. Social media and other online presence offers subrogation counsel new doors to look through when trying to locate and serve a party.
However, because most people have an online presence, it might be difficult to determine you have the right “John Smith” of the 100 results from a single LinkedIn search. Often, a combination of pictures, handles, associated accounts and friends, and listed job and location can confirm a person’s identity.
We can also use social media to piece together factors in a given subrogation suit we might not have had access to in a traditional forensic investigation. Social media research can reveal potential witnesses to an incident, fraudulent behavior by a tortfeasor, or new circumstantial evidence that could make the difference in recovering losses in a subrogation judgment.
For instance, in the stereotypical example of disability fraud, we all remember an old TV show or movie where a PI followed around a person who was suspected to be taking disability or worker’s comp services even though they are totally recovered from the initial incident. The opportunity social media presents here is that you may be able to determine whether or not that person is faking their injuries by looking at photos, videos and other posts online, no foot work necessary.
Ethical Concerns Inherent to Social Media Use in the Legal Sphere
However, the use of social media in the legal process poses ethical concerns that arise with gathering information on people via their digital footprint. It is ethical to use it? Is it unethical to ignore it when we know that it’s a significant factor in most people’s lives?
This is still a grey area for many state jurisdictions, with initial restrictions on how social media is used in the law focused on whether or not the subrogating party is acting in good faith. As with many things in insurance law, it varies by state. For now, the typical way it is dealt with as an auxiliary resource once traditional methods of serving a subrogation demand letter have been attempted to whatever the court deems sufficient effort. Meanwhile, courts have started to deal with the ethical grey areas.
Some Bar Associations have begun to implement restrictions on how lawyers investigating a subrogation case may access someone’s information on social media, specifically, by prohibiting the use of fake accounts or misrepresenting their true identity and intent to the subject of the investigation.
Many court jurisdictions also limit the use of service by social media as a last-resort option to an evasive party; we must demonstrate that we have done due diligence and more with regard to attempting to serve the individual in-person and via certified mail.
The ethical concerns of social media reach far past insurance law; from Cambridge Analytica to Facebook, Instagram, and the Depp-Heard trial, there are broad ethical discussions about information privacy, defamation, the sale of personal data, targeted ads, intellectual property, and more.
Attorneys who Stay Ahead of the Tech Curve in Subrogation Litigation
RG’s investigatory techniques in each subrogation case we manage position us to maximize recoveries while minimizing costs. Our subrogation-focused attorneys understand the intricacies of insurance law as well as the need to keep up with the ever-changing world of technology and social media.
Covering the US, Canada and Puerto Rico, we use cooperative, creative strategies, and the latest in law and technology to effectively advocate for our insurers’ right to recovery.If you would like us to present this information to your group, or to learn more how Rathbone Group can assist you, reach out at info@rathbonegroup.com. And for more on social media in the subrogation sphere, check out our YouTube episode, On Subrogation: Service by Social Media and Email.