November 25, 2024 • 45 mins
Walking the Line: Discovering and Admitting Social Media Evidence with your Ethics Intact panel discussion on Ethics in Social Media Discovery at 2024 DRI Annual Meeting
Think you know all there is to know about using gathering, using and admitting social media evidence in your case? Are you staying within ethical bounds in your practice? Listen and find out!
Join Shane Dawson and Steve Armstrong for round table discussion with Marcus Pierre, Associate Attorney at Christovich & Kearney, LLP, Amber Barlow Garcia, Partner at Deutsch Kerrigan, L.L.P., and Michael Petri, Founder of Webutation, Inc. as we hear from them on how to investigate claims effectively on social media while avoiding ethical pitfalls.
To learn more about DRI and the Workers' Compensation Committee visit www.DRI.org.
#DRILawyer
#DRICommunity
Think you know all there is to know about using gathering, using and admitting social media evidence in your case? Are you staying within ethical bounds in your practice? Listen and find out!
Join Shane Dawson and Steve Armstrong for round table discussion with Marcus Pierre, Associate Attorney at Christovich & Kearney, LLP, Amber Barlow Garcia, Partner at Deutsch Kerrigan, L.L.P., and Michael Petri, Founder of Webutation, Inc. as we hear from them on how to investigate claims effectively on social media while avoiding ethical pitfalls.
To learn more about DRI and the Workers' Compensation Committee visit www.DRI.org.
#DRILawyer
#DRICommunity
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:19):
Welcome back to another episode of Conversations podcast podcast developed
through the Defense Research Institute, where we explore the world
of workers conversation, including the personal aspect aspects involved in
the realm of work injuries and its litigation, as well
as the future trends in every aspect in between. My
name is Steve Armstrong and I'm here with Shane Dawson
(00:40):
today and we are delighted to have multiple speakers with
us today on today's podcast. Shane, will you tell us
that the title of our podcast today, our.
Speaker 2 (00:49):
Title today is walking the line discovering and admitting social
media evidence with your ethics and.
Speaker 1 (00:56):
Tact and that's always a good thing to do. Social
media is a everyone's on it, you know, very people
who aren't on it. And how do we work our
cases with ethics? That is a very good question. And
so let's start by going around the table and we'll
start with Marcus and then Michael, then Amber and could
(01:18):
you please introduce yourselves. Let's start with Marcus.
Speaker 3 (01:21):
Thank you very much. My name is Marcus Pierre. I
practice in New Orleans, Louisiana with Chris vision Kearney Law Firm.
I'm a born, raised New Orleanian. I've been practicing for
six years. The first two was in maritime law, then
a subsequent about two and a half in workers comp.
(01:43):
And I'm more recently been with a broader practice area
than exclusively workers comp. But obviously a lot of the
skills that I developed there are applica cole everywhere, so
I'm excited to.
Speaker 4 (01:55):
Be a part of this. Sounds good.
Speaker 1 (01:57):
Michael, can you tell us about you and your work?
Speaker 4 (02:00):
Sure?
Speaker 5 (02:00):
Stephen, thank you. My name is Michael Petrie.
Speaker 6 (02:02):
I'm a former priduate investigator of thirty years of experience
in this insurance fraud industry. I've created several different programs
that examine individual's actionable intelligence online and big data analytics,
and we use this evidence to provide court ready, legally
defensible reports. So we think of it as a form
of digital surveillance or triage when it comes to field
work that the industry needed.
Speaker 5 (02:23):
So I like like a hammer to a nail. It
helps build a betterhouse.
Speaker 1 (02:26):
Okay, sounds good. Amber, could you tell us about your
background and your practice.
Speaker 7 (02:31):
Sure.
Speaker 8 (02:32):
My name is Amber Barlow Garcia. I am also from
New Orleans. I'm a partner at Deutsch Kerrigan. My practice
mainly focuses in environmental litigation. I handle all cases from
start to finish through to trial. I am also the
co chair of the DRI Ethics and Professionalism Committee, so
I will be giving some insight on keeping your ethics
(02:55):
intact today.
Speaker 1 (02:56):
That sounds good, Michael. Let's start with you on this issue.
As attorneys, we are limited in our capabilities in the
research we can provide our own. Can you discuss some
of the most useful tools that you were seeing in
what emerging strategies have come to the forefront and investigating
an individual relating to suspicions that their injuries are not
(03:17):
the extent that they may have alleged.
Speaker 5 (03:20):
Sure thing.
Speaker 6 (03:21):
Starting with the advanced social media analytics is always a
big companies like ours, like Reputation, we utilize sophisticated software
that can scan multiple platforms and simultaneously including less common
ones that people may not have either used or even
heard of, some of which are things like athletes or Strava,
but also including things like Venmo and cash app, or
(03:44):
Facebook marketplace or golf and bowling scores.
Speaker 5 (03:47):
These are all your Amazon wish lists. These are all publicly.
Speaker 6 (03:51):
Valuable areas that provide referential information about people others. Is
metadata analysis, where we extract metadata from social media posts
and photos. You can see different things such as location data, timestamps,
which are always important. So someone says they missed an
I AM, yet they're in Aruba in that image and
(04:14):
you might be able to determine that that's why they
weren't at their at their IM. Network analysis tools that
allow us to map claimants social connections where you may
have claimants that say they're not friends with other other
claimants or maybe claimants attorneys, but yet there are there
are they are friends, Archived content recovery and clock and
cross platform correlation and some of the tools are anything
(04:37):
from whole heat h O L E h E Sherlock,
these are These are Calie Linux programs that are in
use today. And one new one that's recent is called
uh exuldoc and I'm gonna spell that x E U
L E d O C And we haven't talked about
this recently, but it's it's such a cool tool that
we want to share it and it what it does
(04:58):
is allows you to retrieve email dresses up. Anybody who's
ever created a Google doc en or sheet that's out
there on the Internet. So it also helps us give
a get more information about who we're dealing with, who.
Speaker 1 (05:09):
We're looking for. And so this is all out in
the web, right.
Speaker 4 (05:12):
This is all out of the web.
Speaker 5 (05:13):
This is all public information, and you use.
Speaker 1 (05:16):
These platforms, these programs to go and scrape the web
basically for whatever's out there.
Speaker 5 (05:22):
We use this to help us find as much data
as possible.
Speaker 9 (05:24):
Okay, Okay, So Marcus, let me ask you, with all
of this information that's available that Michael's describe it, when
you're defending a worker's comcase or a case involving a
personal injury, at what whine are you having this conversation
with a client about recommending to proceed with surveillance or
(05:45):
some of this investigation.
Speaker 4 (05:47):
Yeah, that's a great question.
Speaker 3 (05:49):
Increasingly, in my practice so far, clients and adjustors have
already done a certain amount of investigations, whether it be
surveillance for social media candidacy, before I've even gotten the file,
and usually I'll get a dump of claims file materials.
I don't know if y'll have that experience, especially when
(06:10):
it's unlabeled and you're having to kind of sift through
and a lot of that can be very time consuming.
So our clients and adjusters they have their own processes
or when they receive claim sow they're going to go
about conducting their investigations, and oftentimes things like the internal
(06:31):
claim notes can give you some sense of how they
went about conducting those investigations, why they used certain investigative
tools other than others. But what I also find is
oftentimes it amounts to throwing spaghetti on the wall and
seeing what sticks, because it hasn't been narrowly tailored or
(06:53):
calculated about how they're going about doing their investigations, and
it's almost like they have done it in a particular
way and prior claims, so they're just kind of using
some of the same tactics and respective of whether or
not the claim really requires it. So I think from
the moment that we get files, I think it creates
(07:16):
an opportunity where we can create some value to our
clients by after we've evaluated the claim with our eyes,
communicating with them to say, hey, these tools might not
have been as necessary as some of these other tools.
You know, if we're going to do surveillance, was it
in tandem with medical treatment visits and scheduled medical treatment
(07:41):
visits so that we can ensure that we're going to
get a return on that surveillance. So oftentimes it really
isn't our choice about what has already happened.
Speaker 4 (07:50):
But after we've evaluated.
Speaker 3 (07:52):
The claim, we can do it in a much more calculated,
much more strategic way. So when we're talking about what
are the obvious questions that we're dealing with, issues of
compensibility of a claim, issues of an injury, did a
disabling injury occur? And then the disability status are they
(08:13):
as disabled now as they claim that they were previously,
And so after we've taken the time to really evaluate
these claims, I think at that point we can have
a much more effective means of strategizing what tools are
going to be necessary going forward versus just kind of
accepting what is what we've gotten a claim file done.
(08:37):
As time changes and what is necessary and a claim
might change, what tools will be more effective as things
go on.
Speaker 4 (08:46):
So it's almost like.
Speaker 3 (08:48):
Periodically revisiting it as discovery is going on, heading into
depositions and maybe afterwards heading into trials. So it's more
like we want to periodically kind of re evaluate what's
going to be most effective as our investigations go on.
Speaker 2 (09:04):
Okay, so what I'm hearing is when you don't get
the spaghetti against the wall sort of approach, you're always
coming back and revisiting whether or not there is a
particular tool or particular aspect of investigation that you need
to engage in.
Speaker 4 (09:19):
Is that right exactly?
Speaker 3 (09:21):
And in fact, as certain threads are pulled that might
not manifest much of anything. You know, when you're going
into real the meat of litigation, there might be circumstances where, hey, surveillance,
we've tried surveillance once or twice. It's not manifesting much
(09:41):
of anything, so we know that we don't need to
go down that road. Or maybe we've done a social
media canvas, and let's say that there's an issue having
to deal with a disability status and the claimant might
have claimed that they're not capable of working, and a
(10:04):
canvas at some point might alert us to a close
family member or someone who's operating an independent business that
we think possibly this individual might have some connection to
and contributing to. Well, maybe we pull on that thread
and we're not getting much of anything. So it's kind
(10:26):
of like you take certain you have to be both
proactive and creative about how you're going about these investigations.
But I wouldn't say you do the same scattershot over
and over again.
Speaker 1 (10:39):
Okay, Marcus, I've got one question for you, and then
we'll come on to Amber. But in your jurisdiction, let's
say you get some video or even a Facebook photo
of somebody at the lake and swimming or doing something
that is contrary to what they've purported their ability to
be to the claim suggestion, do you do you wait
(11:01):
and use that at trial or hearing, or do you
send it to the treating doctor or you're expert, or
do you use it to confront the claimant during a deposition?
How does that work in your jurisdiction?
Speaker 3 (11:12):
Yeah, I would say in Louisiana, and it's not significantly different.
I don't think in that regard to other jurisdictions that
it's most effectively used, depending on how damning it actually is,
you know. But I would say confronting possibly the treating
(11:33):
positions about it and definitely deposition testimony about it, that's
going to be much more useful when it comes to
trial than getting them on the stand and presenting these pictures.
Because I think when you're looking at these surveillance type
of situations, for there might be circumstances where it might addressly.
Speaker 4 (11:54):
Affective journey for instance.
Speaker 3 (11:56):
Like one example I can give was we've got Martin Graus,
obviously in the city of New Orleans, and there was
a particular claimant who was seen intoxicated and very lively
we'll say, at a given parade for his kids. And
so the jury that even though it was this person
(12:18):
claimed a certain level of disability and these activities are
clearly showing they're able to do more, the jury actually
had an adverse approach to that evidence being brought at
trial because it was understood culturally that Martin Gras devauchery
is a no go.
Speaker 4 (12:38):
Basically that is a particular.
Speaker 3 (12:40):
Time with your family where it didn't come across well
that the client had expended those resources to survail them
during what is a sacred.
Speaker 1 (12:51):
Time, if you will, what happens in pretty gross days.
Speaker 3 (12:56):
So you know, I think that obviously there's not going
to be a legal landscape that says, hey, it's not
you shouldn't be surveilling in client during Martin Grau. And
I think that had it been at mediation it probably
would have come across.
Speaker 4 (13:11):
You could influence.
Speaker 3 (13:12):
More at mediation than in front of a jury where
you don't know what's going to happen. So having an
awareness of the culture and the practices of your jurisdiction
is very important because you're talking about color a trial.
Speaker 1 (13:28):
Amber, Let's ask you. We asked Michael here, and he's
provided some valuable information, but what ethical considerations do we
need to be mindful of, both in an information gathering
stage and once it has been provided by Michael or
that somebody has founded.
Speaker 8 (13:44):
Yeah, and I think in twenty twenty four, social media
evidence is out there. It's a tool that we have
as an attorneys that we need to stop maybe being
so scared of and using it to our advantage.
Speaker 7 (13:57):
I think in the discovery.
Speaker 8 (13:58):
Phase it's very important now when you're advocating for your
client to explore those avenues of evidence.
Speaker 7 (14:06):
We're all bound by the rules of.
Speaker 8 (14:09):
Professional conduct and it really doesn't change when we're talking
about social media. And I think that's one thing that
attorneys get a little hesitant because it's semi new and
we're not quite sure how to use it and how
best to use it.
Speaker 7 (14:23):
But the reality is if it's public information, it's free game.
Speaker 8 (14:28):
And so as long as the information is public, which
Michael was referencing, you can just do You can go
onto the Internet and do a Google search of anybody
and valuable discoverable information comes up. Now the key is
to make sure when those social media profiles are not public.
(14:48):
We know that i't use Facebook, for example, that there
are privacy settings that you can put on Facebook, and
so I may be able to type in a plaintiff's name,
and I may be able to get basic information pictures,
a background picture, where they live, what they do, but
then that's all the information that I can see. Judges
(15:09):
have been universally around the nation here lately. They are
much more keen on the discoverability of information rather than
protecting the expectation of privacy. And I think that's kind
of twofold. I think, you know, Facebook says that we
should not have any type of expectation of privacy when
(15:29):
dealing with posting stuff on social media, even if you
have all of your privacy settings turned on. If you
have all of your privacy settings turned on, you still
your friends can still see that. So there is case
law in which you have a plaintiff who was trying
to suppress evidence because the government had gotten some of
(15:51):
their private information. And the way that they got that
information is they went to a friend of that person
and that person over they said, hey, how long and
you can see everything. They tried to suppress that. The
judge said, no, you don't have an expectation of privacy.
You had a friend, they cooperated with the government and
we were able to retrieve that information. You also just
(16:14):
you cannot friend an opposing party. I think that's somewhere
that gets a little hazy. You edge, the Professional Code
of Conduct says you can't talk to an adverse opposing
party without you know, the attorney's.
Speaker 7 (16:30):
Consent or making that known.
Speaker 8 (16:32):
So you can't go onto any social media platform and
friend the opposing party.
Speaker 7 (16:37):
That seems common sense, right, But where.
Speaker 8 (16:39):
It gets a little hazy is if you have your
pay legal or somebody on your team who wants to
go and friend that person to get access to that
private information, that of course would not be allowed.
Speaker 7 (16:51):
There is a.
Speaker 8 (16:51):
Case in which out of Pennsylvania, Zimmerman, when his profile
was private, what they were able to see he was
actually it was a worker's comp case and he was
claiming that he was injured, and he was claiming damages
of some disfiguration.
Speaker 7 (17:07):
To his body. It was causing him a lot of
emotional distress.
Speaker 8 (17:10):
He didn't wear shorts, but on his profile picture it
was you know where we can all see if you
just search him.
Speaker 7 (17:17):
He was wearing shorts and it.
Speaker 8 (17:19):
Showed that he, you know, was into motorcycle races and
he had, you know, was doing all these dangerous things
that was might be a dangerous and that he would
not be able to do with the injuries that he
was claiming he suffered.
Speaker 7 (17:35):
And the judge said he that he had to overturn
that information.
Speaker 8 (17:39):
Even though his Facebook profile was private, that the attorneys
the Defense Council was able to gain access to his
private profile to discover the information that he had posted.
And sure enough, he had stuff before and after the
accident of you know, being in.
Speaker 7 (17:56):
These motorcycle.
Speaker 8 (17:58):
Jumping I don't even know what it's called, but like
jumping the mounds, and there was no way that he
could possibly engage in that activity with the damages that
he was claiming from the suit that he has filed.
Speaker 1 (18:10):
Perfect And so one more question along those same lines,
have you seen any kind of request for subpoenas a
against like friends. You mentioned your friend might have some
photos that the claim it wouldn't have, or be that
someone actually subpoenaed Facebook.
Speaker 8 (18:30):
So that is a tool that people have used, is
trying to go straight to Facebook and subpoena Facebook. That's
usually not successful. So what would be the better way
to go about it? Would just be to bring a
motion in front of the court and tell the court
this is the information that we think that we can
(18:51):
gain from looking at these private social media avenues, and
more than likely the judge is going to give you
some leeway to do some discovery into that. It depends,
of course, it's on a case by case basis. You're
better to go well tailored of exactly what you're looking
for and why you're looking for that information and why
(19:13):
that information is maybe only available in social media or
that's the best way that you can get that information.
But Facebook does not comply with subpoenas, so that's probably
not your best way. You should just skip that step
altogether and just go straight to the opposing party.
Speaker 7 (19:32):
And try to get that information through discovery with them.
Speaker 1 (19:37):
I did.
Speaker 6 (19:37):
To Amber's points, she brings up a very important point
because we talk about this throughout the country when we
educate individuals using social media to do this on their own.
You know, everybody has competitors in the industry, but similar
competitors are actually just regular people, like the paralegals are
like the secretaries in these offices. And what they may
or may not know is that a PLANETF attorney can
(19:58):
actually subpoena the individual all that conducted the investigation, and
if that individual happens to be you know, Betty Jane
down the hall, who was just doing something that was
asked to do a simple Google search or even a
Facebook query, they could potentially be brought in as a
witness and then asks very very serious questions and very
important questions. What makes you an expert in doing what
(20:19):
you did as a social media an investigator? What were
your investigative methodologies, what were your collective methodologies that when
you collected the evidence, How long have you been doing
social media investigations, so on and so forth. So there's
that potential risk, and then there's also a risk where
we understand individuals are inherently curious. We all are, and
sometimes people want to look up people themselves or again,
(20:42):
we'll go back to the poor secretary or the paralegal
and if they are not protected in a sense that
their profiles are open or it shows where they work Facebook, Instagram, Twitter.
They all want to connect the the world, the planet,
(21:02):
so they will let that individual the claimant know that
they have a friend suggestion and the French suggestion has
zero connections with you. There's no be mutual, so they
might catch on if that person that's looking at them
isn't protecting their own data and it says I work
for this particular law firm, Well, it so happens that
(21:22):
that claimant could find out and thus compromise the future
or the integrity of the investigation.
Speaker 5 (21:27):
Further for when we get our hands on it, so.
Speaker 6 (21:29):
That there have been times where we'll get the case
and it's already been looked at, and at that point
the damage has potentially already been done. We come back,
everything's locked down and of course there is no digital
you cannot protect right absolutely right, So it's just to
just be be cautious. We all need to be cautious
when we poke around and start clicking things that there
have been attorneys that accidentally liked a page by accident,
(21:52):
they didn't mean to. There's attorneys that accidentally center friend
request they didn't mean to. But there's a lot of
buttons that are clickable on these formats and on these
platforms that we just want to be careful or we
could just stay in our lane and let the professionals
have with That's.
Speaker 2 (22:05):
All I want to pivot back to you in a
moment here, Michael. But Amber, do we know in that
case you talked about where the PLANEFF was trying to
suppress the that evidence, did they end up unfriending the
friend who helped the.
Speaker 4 (22:23):
I don't know.
Speaker 8 (22:24):
I'm very sure I would seem reasonable right for that criton.
Speaker 7 (22:28):
But I'm not sure.
Speaker 2 (22:31):
Michael, you've testified at trial about these things, unlike maybe
the person down the hall or the paralegal who's had
to do it, and whether you're having to authenticate it
or describe the investigation that you've done. And in doing that,
what lessons have you learned that you can share with
attorneys that they should be mindful of when they're considering
(22:53):
the use of investigative evidence.
Speaker 6 (22:55):
Well, I think what we've what we've encountered is a
lot of it wasn't me. It was my twin brother,
it was my twin cousin. It was always the first.
The first things that usually comes out of the claimant's
mouth was it's it's prove it proved that that was me. Well,
that often can be done through facial features, hairlines. Tattoos
(23:16):
are usually our favorite when you see individual tattoos. I
can remember two cases, one of which where the claimant
was so adimant that it wasn't them that took the
image and posted it, that it was fought, and the
evidence was on a very specific page, and I remember
this page, page forty six, and it was so interesting
that the claiman's attorney did not catch on, nor did
the claimant, that the reflection was in the window showing
(23:40):
the same arm tattoo on their right elbow, and it
was just indisputable that the individual fought tooth and nil
that it wasn't them, prove it was me, and it
was very easily proven that this reflection. So there's a
lot of answers, sometimes not in front of our eyes,
but sometimes behind the image in the four granded background
of the person that actually led to that particular discovery
(24:00):
and proof that that was the it was the individual
in fact that and it wasn't done.
Speaker 1 (24:06):
So along those same lines, Marcus, let me ask you,
is we're preparing our case for a trial and weighing
the use of information obtained through surveillance and other investigation techniques.
Can you discuss the obstacles to admissibility of social media
evidence in general?
Speaker 3 (24:20):
Yes, I think generally social media evidence listens many of
the same questions and issues as any other type of evidence.
When we're talking about admissibility, First, is is it relevant
to the dispute? And then how do we authenticate the
social media evidence? So with respect to relevance, you know,
(24:43):
everyone understands rule for one, the federal rules of evidence,
and because most your instinctions kind of incorporate the same
ideas or respect to relevance. So really with social media,
what's unique is the manner of authenticating social media evidence.
(25:03):
Because traditional evidence such as medical records, personnel file materials, notes,
reports are physical.
Speaker 4 (25:11):
We have an identify somebody that is directly.
Speaker 3 (25:14):
Connected to it that you can go to and ask
to certify. Social media evidence isn't really traditionally the same way.
But so we have different jurisdictions have different approaches. You
have some more stringent preponderance to the evidence approaches, which
(25:35):
we can see in areas like Maryland, New York, Massachusetts,
and Mississippi, whereas of Texas and Louisiana take a somewhat
lessient prima facia sufficient evidence standard approach.
Speaker 4 (25:50):
But generally, regardless of what approach.
Speaker 3 (25:53):
It is, if you have a consciousness about how you
go about establishing that this social whther it's a social
media page, whether they're on private messages or direct messages,
whether they are photos, how do we prove that the
person we allege produced these messages took these photos. How
(26:14):
do we establish it they really were who we are
saying that they are, and are using it for the
purposes that were presenting it as So we've got, for instance,
sometimes we have testimony. We'll call somebody as a witness
in order to establish that yes they did take the photo,
yes they did send or receive the message.
Speaker 4 (26:37):
Other otherwise we can do.
Speaker 3 (26:40):
But it also depends on the nature of the social
media evidence that we're talking about. I think Michael was
talking about at the beginning of this talk about how
diverse what are we even talking.
Speaker 4 (26:51):
About when it comes to social media evidence?
Speaker 3 (26:54):
Because from when I kind of came up in the
Social Media Aid thirty three and my very first MySpace
page that they get created in two thousand and five.
So I've spent almost twenty years in the social media world.
So as you can imagine, things have dramatically changed and
(27:14):
in terms of how we interact online. So we've got
your traditional Facebook pages, your MySpace or what was MySpace
and now Instagram, so on and so forth.
Speaker 4 (27:25):
But then we've got.
Speaker 3 (27:26):
Things as we mentioned before Vinmo cash app, but also
things like your air tags on your your running around
with iPhone or Apple products or various other applications that
might not be traditional social media but our technology that
(27:49):
can be viewed in a diverse kind of perspective that,
depending on the nature of the facts in your case,
might be useful in improving things like as Michael mentioned before,
location We had a case where an injured person's claiming
this wasn't a comp case, it was a general liability case,
(28:11):
but was claiming that they weren't capable of doing various
activities and so a social media can this identified a
general business page for a pipe cleaning business that the
person was operating. Weren't really hiding it particularly well but
from the initial it was a business that was formulated
(28:32):
after the claims started, about a year or two after
the claim started. So that kind of goes back to
what I was saying before about making sure you're regularly
checking these things that the activities that these people are
engaged in. But that's not a traditional type of social media.
Speaker 4 (28:50):
Activity.
Speaker 3 (28:51):
That's still once we presented it to the person, it
wasn't an issue and authentication because they came to a
deposition with driving a truck that had the business name
attached to it. But I think all in all, being
creative and about understanding what the social media pages are,
(29:13):
what the different mechanisms are within them as well, can
assist when you're talking about authentication because when, for instance,
they've gotten multiple mechanisms on the Instagram alone, for instance,
that can be used to hide or conceal messages, and
(29:35):
if you have an awareness of them, there might be
certain amount of data, a certain amount of things like
let's say, for instance.
Speaker 4 (29:42):
You've got a.
Speaker 3 (29:44):
Claimant and somebody associated with that claimant and the associate
might have taken screen grabs of messages that otherwise would
have vanished or have been deleted. Then you can get
testimony from the individual too often to get the screenshots
of these messages that if you didn't have that individual,
(30:05):
you'd have a much harder time authenticating those messages. So,
first and foremost, I would say, canvas your jurisdiction in
order to see how they approach what their approach is
to authentication when it comes to social media, and then
build up as much support for the authenticity of the
(30:26):
social media evidence as possible so that you basically prevent
any attack that your opposing console can prevent can present
to undermine the validity of those.
Speaker 1 (30:39):
That evidence, right, And so along those same lines, you know,
to me Facebook, getting anything from Facebook is hearsay because
it's you know, not from a speaking witness, And so
if you have it looking forward to the motion and
elimonade before a trial, you want to stop any attack
on your evidence there. So that's why I would want
(31:01):
to have it at the time of the plaintiff's deposition,
to have the plaintiff admit that it is or have
them admit in request for admissions. Absolutely, and so can
you can you think of anything else in other ways
to avoid the hearsay defense at motion limited time?
Speaker 4 (31:25):
Right?
Speaker 3 (31:26):
Well, it would definitely a part of it is having
the person there right, having the entity there that we
are alleging either created whether, first of all, depends on
what we're talking about messages, are we talking about photos?
What is the evidence that we're talking about to the
extent that these are statements. The one of the difficult
(31:50):
things is if the party that we're alleging has made
the statement, maybe they made the statement to another party
that isn't available, then it just becomes just really difficult
to get it in. But I think that you, in
how I've seen certain jurisdictions approach it, if you've got
(32:11):
a body of evidence that makes it uplontantly clear that
this person that's a legendly didn't say these things, that
didn't send these things, really did say to send these things,
I think that you the judges are more often than
not going to allow it in than to sustain a
hearsay objection on it, because it's like, hey, all signs
are pointing to you said it, or you posted it,
(32:33):
or you did it. So I think it's really just
you build up as much evidence as you can to
support the fact that you are. You know, what you're
presenting it is is in fact how it really went out.
Speaker 2 (32:45):
Right, Amber, let me ask you, so, with with all
of these challenges that are involved maybe in getting the
evidence in and some of the things that Michael has
talked about, all these different sources that we have, have
you noticed any common pitfalls that you've run across where
(33:07):
attorneys are choosing to investigate or use social media as
part of a defense case That seem to come up
again and again.
Speaker 7 (33:16):
Yeah, I think some of.
Speaker 8 (33:17):
The common titfalls are just trying to obtain information from
social media sources that are private. I think attorneys, you know,
see that as a roadblock and then work to try
to obtain that private information in ways that may you know,
be unethical in the end game. For example, friending opposing parties.
(33:43):
That's something most most people, most attorneys are smart enough
to know they can't do it personally. But as Michael
mentioned earlier, it really comes in when you have people
on your team, you're paralegal looking at information, friending them,
sending messages, and.
Speaker 7 (33:59):
We know that that's it's not allowed. Judges aren't going
to go for that either.
Speaker 8 (34:03):
That's not been successful in cases where that the opposing
party has tried to get information at falsely.
Speaker 7 (34:11):
So one of the things again that I would suggest.
Speaker 8 (34:13):
Is when you're in that boat where you have information
you think that's on someone's social media profile that's private,
that you handle that in discovery. I think, like I said,
judges are becoming much more keen on the discoverability rather
than the expectation of privacy. You also have to be
very very careful when frending third parties. So if you
(34:36):
get a witness list from your opposing party, you want
to make sure when you're investigating those back witnesses that
you're also not engaging in the same type of misrepresentation.
You need to make very clear that you're telling those
people if you're looking into them, hey, I'm on the
defense side, I'm investigating this. And I think that's also
(35:00):
you know, we have a duty as attorneys to be
competent and to be competent in what we're doing and
the tools that we have. Social media is kind of
one of those areas that we have to be somewhat
competent in in twenty twenty four because it's just so
widely available, it's being used in litigation, and part of
being competent is knowing your limitations and so you hire
(35:23):
people like Michael that can help you do that help
you kind of avoid some of those ethical pitfalls that
you might find yourself in. And then one of the
other areas is friending a judge. I'm from New Orleans,
Marcus is from New Orleans. It's a very small legal community.
New Orleans is a city where you've been to high
school with people judges. That's something that's common most of
(35:47):
the cases we've seen. The judges and the courts are
well aware that just because you are friends with someone
on social media, you may never have met them before,
you may never have interact with them before. So as
an attorney, if you find yourself in that position where
you're friends with a judge, you should just disclose that
(36:09):
from the beginning. There have been cases where that wasn't disclosed,
or the judge was actually friends on social media with party,
not even the attorneys, but with a party, and it
wasn't disclosed until trial and that became a problem. So
I think it's important in that type of situation that
(36:30):
you make sure you're not friending the judge or there's
not you know, you're not liking the judges LinkedIn things.
Those kind of things can become an issue that you
should at least disclose going forward.
Speaker 3 (36:43):
Amber, I didn't have a question if because my understanding
what I've canvas some of the various jurisdictions is that
the question of whether or not a social media page
is public or private when it comes to social media,
and since it's admissibility, it's more of an issue of
(37:04):
how you're going about acquiring it rather than its actual admissibility.
Whereas I haven't seen one where because it was private,
whether it was a private message or a private board,
that that was created a barrier to its admissibility. It's
more like did you use another means in order to
(37:25):
acquire it?
Speaker 7 (37:26):
That's absolutely correct.
Speaker 8 (37:27):
I mentioned earlier in the Zimmerman case out of Pennsylvania
that there was a plaintiff who was claiming damages and
injuries that was clear was not the case based on
just his profile picture, and so the defense went to
the judge with emotion and said, hey, there's information here
(37:48):
in his social media on Facebook that we need to
discover because he has a picture of himself in shorts
with motorcycle gear on.
Speaker 7 (37:57):
And the judge agreed and said, he doesn't know your day.
He had to give over, you.
Speaker 8 (38:03):
Know, his Facebook, and the defense was able to look
at it. And then of course for the other side,
for plaintiffs, if they scrub up that social media, it
could be spoilation. And so that's not something that's something
that on the defense side we should be aware of
because that's something that we want to make sure is
not happening.
Speaker 7 (38:22):
Right.
Speaker 4 (38:24):
That was actually going to be my next question.
Speaker 8 (38:27):
This council would say, you know, from here on out,
like you need to be very careful what you do
on social media, but you can't delete anything that you've
already done.
Speaker 7 (38:35):
And if it comes to light that things have.
Speaker 8 (38:37):
Been deleted leading up to litigation, that can be a real,
a real big problem.
Speaker 10 (38:43):
So Ever, the takeaway that I'm hearing from you is
it certainly is a much safer course for defense counsel,
you know, defendants to engage the services of somebody like Michael,
somebody who can as a third party go through and
look at all of this information, look at all these
(39:05):
different sources of data, as opposed to trying to do
this in house.
Speaker 4 (39:09):
Is that right?
Speaker 1 (39:09):
Correct?
Speaker 4 (39:10):
Okay?
Speaker 6 (39:11):
And I had one additional pitfall which is pretty major,
and we're talking right now a lot of surface level.
Speaker 5 (39:19):
Searches where people are using Google. And I'm not saying
there's anything wrong with that.
Speaker 6 (39:23):
I mean it's perfect to figure out a veal palm
recipe or what time Batman's playing at the movies, because
it certainly shouldn't be rested upon an investigative laurel to
say that's the conclusion of this investigation. Google only provides
approximately one seven hundred of the amount of information that's available.
So the big question is if someone doesn't know what
they're doing, imagine what they're missing. And here's the pitfall.
(39:43):
Imagine the claimant's attorney knows that the claimant was a
church volunteer and is seen posted about helping at the church,
but it wasn't in the report. And now they're going
to potentially say, well, that's selective, Well why didn't you
put that in there? And it potentially could be while
the investigator did I missed it, I didn't see it,
(40:06):
or are you being selective because that might help their
case and make the claimant look a little bit tinder
to it, say a jury. So mised information is a
major pitfall when it comes to certain types. You never
want to get caught in a potential of being accused
of selective in what you've put into a report or
what you find. It's very likened to an investigator in
(40:27):
the field doing surveillance and stops videotaping when he sees
the claimant limping or using a visible orthopag device, right,
so that you don't want to do either. Both are
morally unethical. But it does come back to mised information
because people just don't understand the depths and the breath
of the Internet. Ninety four percent of the data is
(40:49):
found off of Google and off of being an off
of Yahoo.
Speaker 5 (40:53):
They just don't cash those types of pages. So you
have to go.
Speaker 6 (40:56):
You have to know where to look, how to look
and document and say preserve that information correctly.
Speaker 2 (41:02):
Michael, let me follow up on that, because so this
idea that you know, there's this limited amount that that
most of us are probably aware of, you know, like
you said, we're looking at the surface. So and this
might go a little bit beyond you know, what we're
talking about in terms of using it for defense, but
maybe something that will be interested in hearing about just
(41:24):
for our own lives, because obviously we're all tethered to
our smartphones right, and we use them all the time
and they're collecting all of this data. Can can you
just give us, you know, briefly anyway some aspects of
this tech that maybe we're not aware of as everyday
consumers of it that is out there and is accessible
(41:47):
and somebody like you might be able to use it
for a case, but we don't even know that it's so.
Speaker 6 (41:53):
And we've touched upon that briefly today. Both Amber and
Well actually had a good point in regards to the
data and Marcus as well when we talked about the fitbits. Right,
this wearable technology is and right now we're just evolving, right,
(42:14):
we're we're now heading.
Speaker 4 (42:16):
Into or we've been in the metaverse.
Speaker 6 (42:18):
We're at web three point zero and we've been there
for quite for quite sometimes, so we as as attorneys investigators,
we all have to evolve with the tech and understand
where it is and how big it's getting. With the
with the wearables, right that I found this very interesting
there is there are sites for every device that you
pretty much wear, right, So your fitbit has a community
that's a searchable that's a searchable arena for information about
(42:41):
a claimant. Your peloton if you write a peloton if
you can afford a peloton, if you.
Speaker 1 (42:44):
Write a peloton.
Speaker 6 (42:45):
But you're all lawyers can probably have two pelotons. That
information is searchable and you can determine and individuals.
Speaker 5 (42:52):
Use that's posted. That's posted.
Speaker 6 (42:54):
Same thing with your your your your your smart watches
that measure your coloric intakes, and your steps, and your
heart rates and how much you sweat.
Speaker 5 (43:05):
All of that is is discoverable, finable. We just talked
about this the other day.
Speaker 6 (43:10):
Easy pass on your vehicle, right, this tells if you
if you have something that said I can't drive or
I'm not driving, I'm not going anywhere. Well, let's subpoena
that easy pass. I understand not every state has it,
but if your state that you're in has it, let's
let's let's subpoena that that easy pass to see and
then we'll take it up a couple of notches to
Now the metaglasses and the oculists that are out there,
and we just recently had a poker player online that
(43:32):
we found through the oculus. Now granted it wasn't physical activity,
but if we're finding that data and no one else
even knows where to look, just imagine what else is
being missed by these other organizations or uh uh, individuals
that maybe shouldn't be looking for information and putting out
reports that says this is our completed report. We have
yet to lose an apples to apples comparison on any way.
(43:53):
That's given us a challenge because we have to we
have to know where to look.
Speaker 5 (43:59):
That is our our job is to know where that
information hides or lies. And right now everybody knows what a.
Speaker 6 (44:05):
Gigabyte is, right, megabyte, gigabyte, terabyte, Well, we are now
in what's called bronto byte stage. This is the size
of the Internet and storage. A brono byte is one
followed by twenty four zeros and growing by the second.
So we have a lot to be thankful for, and
we also have to we have a lot to be
(44:26):
knowledgeable of as this continues to move at lightning speed.
Speaker 5 (44:30):
Okay, assurance isn't necessarily.
Speaker 6 (44:33):
Fast and or furious, but there are there are tech
advances that are out there that are helped with either
risk analysis or potentially minority report style pre COG where
you can determine the person's going to commit fraud even
before it happens. Right, That's where we're heading out. That's
where some of the companies are are at today. Who
that answers some of that.
Speaker 2 (44:53):
Questions absolutely, And so before I throw it back to you, Steve,
I just want to thank you guys today. I I
feel like now we kind of know what we're looking
for and maybe how to use it and how to
use it without getting ourselves in trouble.
Speaker 1 (45:07):
Okay, so three key things. Thank you all very much, Marcus,
Michael Amber, great to have you all today, and thank
you for being on the podcast.
Speaker 5 (45:17):
Thank you very much, thank you, thank much, thank you
Welcome back to another episode of Conversations podcast podcast developed
through the Defense Research Institute, where we explore the world
of workers conversation, including the personal aspect aspects involved in
the realm of work injuries and its litigation, as well
as the future trends in every aspect in between. My
name is Steve Armstrong and I'm here with Shane Dawson
(00:40):
today and we are delighted to have multiple speakers with
us today on today's podcast. Shane, will you tell us
that the title of our podcast today, our.
Speaker 2 (00:49):
Title today is walking the line discovering and admitting social
media evidence with your ethics and.
Speaker 1 (00:56):
Tact and that's always a good thing to do. Social
media is a everyone's on it, you know, very people
who aren't on it. And how do we work our
cases with ethics? That is a very good question. And
so let's start by going around the table and we'll
start with Marcus and then Michael, then Amber and could
(01:18):
you please introduce yourselves. Let's start with Marcus.
Speaker 3 (01:21):
Thank you very much. My name is Marcus Pierre. I
practice in New Orleans, Louisiana with Chris vision Kearney Law Firm.
I'm a born, raised New Orleanian. I've been practicing for
six years. The first two was in maritime law, then
a subsequent about two and a half in workers comp.
(01:43):
And I'm more recently been with a broader practice area
than exclusively workers comp. But obviously a lot of the
skills that I developed there are applica cole everywhere, so
I'm excited to.
Speaker 4 (01:55):
Be a part of this. Sounds good.
Speaker 1 (01:57):
Michael, can you tell us about you and your work?
Speaker 4 (02:00):
Sure?
Speaker 5 (02:00):
Stephen, thank you. My name is Michael Petrie.
Speaker 6 (02:02):
I'm a former priduate investigator of thirty years of experience
in this insurance fraud industry. I've created several different programs
that examine individual's actionable intelligence online and big data analytics,
and we use this evidence to provide court ready, legally
defensible reports. So we think of it as a form
of digital surveillance or triage when it comes to field
work that the industry needed.
Speaker 5 (02:23):
So I like like a hammer to a nail. It
helps build a betterhouse.
Speaker 1 (02:26):
Okay, sounds good. Amber, could you tell us about your
background and your practice.
Speaker 7 (02:31):
Sure.
Speaker 8 (02:32):
My name is Amber Barlow Garcia. I am also from
New Orleans. I'm a partner at Deutsch Kerrigan. My practice
mainly focuses in environmental litigation. I handle all cases from
start to finish through to trial. I am also the
co chair of the DRI Ethics and Professionalism Committee, so
I will be giving some insight on keeping your ethics
(02:55):
intact today.
Speaker 1 (02:56):
That sounds good, Michael. Let's start with you on this issue.
As attorneys, we are limited in our capabilities in the
research we can provide our own. Can you discuss some
of the most useful tools that you were seeing in
what emerging strategies have come to the forefront and investigating
an individual relating to suspicions that their injuries are not
(03:17):
the extent that they may have alleged.
Speaker 5 (03:20):
Sure thing.
Speaker 6 (03:21):
Starting with the advanced social media analytics is always a
big companies like ours, like Reputation, we utilize sophisticated software
that can scan multiple platforms and simultaneously including less common
ones that people may not have either used or even
heard of, some of which are things like athletes or Strava,
but also including things like Venmo and cash app, or
(03:44):
Facebook marketplace or golf and bowling scores.
Speaker 5 (03:47):
These are all your Amazon wish lists. These are all publicly.
Speaker 6 (03:51):
Valuable areas that provide referential information about people others. Is
metadata analysis, where we extract metadata from social media posts
and photos. You can see different things such as location data, timestamps,
which are always important. So someone says they missed an
I AM, yet they're in Aruba in that image and
(04:14):
you might be able to determine that that's why they
weren't at their at their IM. Network analysis tools that
allow us to map claimants social connections where you may
have claimants that say they're not friends with other other
claimants or maybe claimants attorneys, but yet there are there
are they are friends, Archived content recovery and clock and
cross platform correlation and some of the tools are anything
(04:37):
from whole heat h O L E h E Sherlock,
these are These are Calie Linux programs that are in
use today. And one new one that's recent is called
uh exuldoc and I'm gonna spell that x E U
L E d O C And we haven't talked about
this recently, but it's it's such a cool tool that
we want to share it and it what it does
(04:58):
is allows you to retrieve email dresses up. Anybody who's
ever created a Google doc en or sheet that's out
there on the Internet. So it also helps us give
a get more information about who we're dealing with, who.
Speaker 1 (05:09):
We're looking for. And so this is all out in
the web, right.
Speaker 4 (05:12):
This is all out of the web.
Speaker 5 (05:13):
This is all public information, and you use.
Speaker 1 (05:16):
These platforms, these programs to go and scrape the web
basically for whatever's out there.
Speaker 5 (05:22):
We use this to help us find as much data
as possible.
Speaker 9 (05:24):
Okay, Okay, So Marcus, let me ask you, with all
of this information that's available that Michael's describe it, when
you're defending a worker's comcase or a case involving a
personal injury, at what whine are you having this conversation
with a client about recommending to proceed with surveillance or
(05:45):
some of this investigation.
Speaker 4 (05:47):
Yeah, that's a great question.
Speaker 3 (05:49):
Increasingly, in my practice so far, clients and adjustors have
already done a certain amount of investigations, whether it be
surveillance for social media candidacy, before I've even gotten the file,
and usually I'll get a dump of claims file materials.
I don't know if y'll have that experience, especially when
(06:10):
it's unlabeled and you're having to kind of sift through
and a lot of that can be very time consuming.
So our clients and adjusters they have their own processes
or when they receive claim sow they're going to go
about conducting their investigations, and oftentimes things like the internal
(06:31):
claim notes can give you some sense of how they
went about conducting those investigations, why they used certain investigative
tools other than others. But what I also find is
oftentimes it amounts to throwing spaghetti on the wall and
seeing what sticks, because it hasn't been narrowly tailored or
(06:53):
calculated about how they're going about doing their investigations, and
it's almost like they have done it in a particular
way and prior claims, so they're just kind of using
some of the same tactics and respective of whether or
not the claim really requires it. So I think from
the moment that we get files, I think it creates
(07:16):
an opportunity where we can create some value to our
clients by after we've evaluated the claim with our eyes,
communicating with them to say, hey, these tools might not
have been as necessary as some of these other tools.
You know, if we're going to do surveillance, was it
in tandem with medical treatment visits and scheduled medical treatment
(07:41):
visits so that we can ensure that we're going to
get a return on that surveillance. So oftentimes it really
isn't our choice about what has already happened.
Speaker 4 (07:50):
But after we've evaluated.
Speaker 3 (07:52):
The claim, we can do it in a much more calculated,
much more strategic way. So when we're talking about what
are the obvious questions that we're dealing with, issues of
compensibility of a claim, issues of an injury, did a
disabling injury occur? And then the disability status are they
(08:13):
as disabled now as they claim that they were previously,
And so after we've taken the time to really evaluate
these claims, I think at that point we can have
a much more effective means of strategizing what tools are
going to be necessary going forward versus just kind of
accepting what is what we've gotten a claim file done.
(08:37):
As time changes and what is necessary and a claim
might change, what tools will be more effective as things
go on.
Speaker 4 (08:46):
So it's almost like.
Speaker 3 (08:48):
Periodically revisiting it as discovery is going on, heading into
depositions and maybe afterwards heading into trials. So it's more
like we want to periodically kind of re evaluate what's
going to be most effective as our investigations go on.
Speaker 2 (09:04):
Okay, so what I'm hearing is when you don't get
the spaghetti against the wall sort of approach, you're always
coming back and revisiting whether or not there is a
particular tool or particular aspect of investigation that you need
to engage in.
Speaker 4 (09:19):
Is that right exactly?
Speaker 3 (09:21):
And in fact, as certain threads are pulled that might
not manifest much of anything. You know, when you're going
into real the meat of litigation, there might be circumstances where, hey, surveillance,
we've tried surveillance once or twice. It's not manifesting much
(09:41):
of anything, so we know that we don't need to
go down that road. Or maybe we've done a social
media canvas, and let's say that there's an issue having
to deal with a disability status and the claimant might
have claimed that they're not capable of working, and a
(10:04):
canvas at some point might alert us to a close
family member or someone who's operating an independent business that
we think possibly this individual might have some connection to
and contributing to. Well, maybe we pull on that thread
and we're not getting much of anything. So it's kind
(10:26):
of like you take certain you have to be both
proactive and creative about how you're going about these investigations.
But I wouldn't say you do the same scattershot over
and over again.
Speaker 1 (10:39):
Okay, Marcus, I've got one question for you, and then
we'll come on to Amber. But in your jurisdiction, let's
say you get some video or even a Facebook photo
of somebody at the lake and swimming or doing something
that is contrary to what they've purported their ability to
be to the claim suggestion, do you do you wait
(11:01):
and use that at trial or hearing, or do you
send it to the treating doctor or you're expert, or
do you use it to confront the claimant during a deposition?
How does that work in your jurisdiction?
Speaker 3 (11:12):
Yeah, I would say in Louisiana, and it's not significantly different.
I don't think in that regard to other jurisdictions that
it's most effectively used, depending on how damning it actually is,
you know. But I would say confronting possibly the treating
(11:33):
positions about it and definitely deposition testimony about it, that's
going to be much more useful when it comes to
trial than getting them on the stand and presenting these pictures.
Because I think when you're looking at these surveillance type
of situations, for there might be circumstances where it might addressly.
Speaker 4 (11:54):
Affective journey for instance.
Speaker 3 (11:56):
Like one example I can give was we've got Martin Graus,
obviously in the city of New Orleans, and there was
a particular claimant who was seen intoxicated and very lively
we'll say, at a given parade for his kids. And
so the jury that even though it was this person
(12:18):
claimed a certain level of disability and these activities are
clearly showing they're able to do more, the jury actually
had an adverse approach to that evidence being brought at
trial because it was understood culturally that Martin Gras devauchery
is a no go.
Speaker 4 (12:38):
Basically that is a particular.
Speaker 3 (12:40):
Time with your family where it didn't come across well
that the client had expended those resources to survail them
during what is a sacred.
Speaker 1 (12:51):
Time, if you will, what happens in pretty gross days.
Speaker 3 (12:56):
So you know, I think that obviously there's not going
to be a legal landscape that says, hey, it's not
you shouldn't be surveilling in client during Martin Grau. And
I think that had it been at mediation it probably
would have come across.
Speaker 4 (13:11):
You could influence.
Speaker 3 (13:12):
More at mediation than in front of a jury where
you don't know what's going to happen. So having an
awareness of the culture and the practices of your jurisdiction
is very important because you're talking about color a trial.
Speaker 1 (13:28):
Amber, Let's ask you. We asked Michael here, and he's
provided some valuable information, but what ethical considerations do we
need to be mindful of, both in an information gathering
stage and once it has been provided by Michael or
that somebody has founded.
Speaker 8 (13:44):
Yeah, and I think in twenty twenty four, social media
evidence is out there. It's a tool that we have
as an attorneys that we need to stop maybe being
so scared of and using it to our advantage.
Speaker 7 (13:57):
I think in the discovery.
Speaker 8 (13:58):
Phase it's very important now when you're advocating for your
client to explore those avenues of evidence.
Speaker 7 (14:06):
We're all bound by the rules of.
Speaker 8 (14:09):
Professional conduct and it really doesn't change when we're talking
about social media. And I think that's one thing that
attorneys get a little hesitant because it's semi new and
we're not quite sure how to use it and how
best to use it.
Speaker 7 (14:23):
But the reality is if it's public information, it's free game.
Speaker 8 (14:28):
And so as long as the information is public, which
Michael was referencing, you can just do You can go
onto the Internet and do a Google search of anybody
and valuable discoverable information comes up. Now the key is
to make sure when those social media profiles are not public.
(14:48):
We know that i't use Facebook, for example, that there
are privacy settings that you can put on Facebook, and
so I may be able to type in a plaintiff's name,
and I may be able to get basic information pictures,
a background picture, where they live, what they do, but
then that's all the information that I can see. Judges
(15:09):
have been universally around the nation here lately. They are
much more keen on the discoverability of information rather than
protecting the expectation of privacy. And I think that's kind
of twofold. I think, you know, Facebook says that we
should not have any type of expectation of privacy when
(15:29):
dealing with posting stuff on social media, even if you
have all of your privacy settings turned on. If you
have all of your privacy settings turned on, you still
your friends can still see that. So there is case
law in which you have a plaintiff who was trying
to suppress evidence because the government had gotten some of
(15:51):
their private information. And the way that they got that
information is they went to a friend of that person
and that person over they said, hey, how long and
you can see everything. They tried to suppress that. The
judge said, no, you don't have an expectation of privacy.
You had a friend, they cooperated with the government and
we were able to retrieve that information. You also just
(16:14):
you cannot friend an opposing party. I think that's somewhere
that gets a little hazy. You edge, the Professional Code
of Conduct says you can't talk to an adverse opposing
party without you know, the attorney's.
Speaker 7 (16:30):
Consent or making that known.
Speaker 8 (16:32):
So you can't go onto any social media platform and
friend the opposing party.
Speaker 7 (16:37):
That seems common sense, right, But where.
Speaker 8 (16:39):
It gets a little hazy is if you have your
pay legal or somebody on your team who wants to
go and friend that person to get access to that
private information, that of course would not be allowed.
Speaker 7 (16:51):
There is a.
Speaker 8 (16:51):
Case in which out of Pennsylvania, Zimmerman, when his profile
was private, what they were able to see he was
actually it was a worker's comp case and he was
claiming that he was injured, and he was claiming damages
of some disfiguration.
Speaker 7 (17:07):
To his body. It was causing him a lot of
emotional distress.
Speaker 8 (17:10):
He didn't wear shorts, but on his profile picture it
was you know where we can all see if you
just search him.
Speaker 7 (17:17):
He was wearing shorts and it.
Speaker 8 (17:19):
Showed that he, you know, was into motorcycle races and
he had, you know, was doing all these dangerous things
that was might be a dangerous and that he would
not be able to do with the injuries that he
was claiming he suffered.
Speaker 7 (17:35):
And the judge said he that he had to overturn
that information.
Speaker 8 (17:39):
Even though his Facebook profile was private, that the attorneys
the Defense Council was able to gain access to his
private profile to discover the information that he had posted.
And sure enough, he had stuff before and after the
accident of you know, being in.
Speaker 7 (17:56):
These motorcycle.
Speaker 8 (17:58):
Jumping I don't even know what it's called, but like
jumping the mounds, and there was no way that he
could possibly engage in that activity with the damages that
he was claiming from the suit that he has filed.
Speaker 1 (18:10):
Perfect And so one more question along those same lines,
have you seen any kind of request for subpoenas a
against like friends. You mentioned your friend might have some
photos that the claim it wouldn't have, or be that
someone actually subpoenaed Facebook.
Speaker 8 (18:30):
So that is a tool that people have used, is
trying to go straight to Facebook and subpoena Facebook. That's
usually not successful. So what would be the better way
to go about it? Would just be to bring a
motion in front of the court and tell the court
this is the information that we think that we can
(18:51):
gain from looking at these private social media avenues, and
more than likely the judge is going to give you
some leeway to do some discovery into that. It depends,
of course, it's on a case by case basis. You're
better to go well tailored of exactly what you're looking
for and why you're looking for that information and why
(19:13):
that information is maybe only available in social media or
that's the best way that you can get that information.
But Facebook does not comply with subpoenas, so that's probably
not your best way. You should just skip that step
altogether and just go straight to the opposing party.
Speaker 7 (19:32):
And try to get that information through discovery with them.
Speaker 1 (19:37):
I did.
Speaker 6 (19:37):
To Amber's points, she brings up a very important point
because we talk about this throughout the country when we
educate individuals using social media to do this on their own.
You know, everybody has competitors in the industry, but similar
competitors are actually just regular people, like the paralegals are
like the secretaries in these offices. And what they may
or may not know is that a PLANETF attorney can
(19:58):
actually subpoena the individual all that conducted the investigation, and
if that individual happens to be you know, Betty Jane
down the hall, who was just doing something that was
asked to do a simple Google search or even a
Facebook query, they could potentially be brought in as a
witness and then asks very very serious questions and very
important questions. What makes you an expert in doing what
(20:19):
you did as a social media an investigator? What were
your investigative methodologies, what were your collective methodologies that when
you collected the evidence, How long have you been doing
social media investigations, so on and so forth. So there's
that potential risk, and then there's also a risk where
we understand individuals are inherently curious. We all are, and
sometimes people want to look up people themselves or again,
(20:42):
we'll go back to the poor secretary or the paralegal
and if they are not protected in a sense that
their profiles are open or it shows where they work Facebook, Instagram, Twitter.
They all want to connect the the world, the planet,
(21:02):
so they will let that individual the claimant know that
they have a friend suggestion and the French suggestion has
zero connections with you. There's no be mutual, so they
might catch on if that person that's looking at them
isn't protecting their own data and it says I work
for this particular law firm, Well, it so happens that
(21:22):
that claimant could find out and thus compromise the future
or the integrity of the investigation.
Speaker 5 (21:27):
Further for when we get our hands on it, so.
Speaker 6 (21:29):
That there have been times where we'll get the case
and it's already been looked at, and at that point
the damage has potentially already been done. We come back,
everything's locked down and of course there is no digital
you cannot protect right absolutely right, So it's just to
just be be cautious. We all need to be cautious
when we poke around and start clicking things that there
have been attorneys that accidentally liked a page by accident,
(21:52):
they didn't mean to. There's attorneys that accidentally center friend
request they didn't mean to. But there's a lot of
buttons that are clickable on these formats and on these
platforms that we just want to be careful or we
could just stay in our lane and let the professionals
have with That's.
Speaker 2 (22:05):
All I want to pivot back to you in a
moment here, Michael. But Amber, do we know in that
case you talked about where the PLANEFF was trying to
suppress the that evidence, did they end up unfriending the
friend who helped the.
Speaker 4 (22:23):
I don't know.
Speaker 8 (22:24):
I'm very sure I would seem reasonable right for that criton.
Speaker 7 (22:28):
But I'm not sure.
Speaker 2 (22:31):
Michael, you've testified at trial about these things, unlike maybe
the person down the hall or the paralegal who's had
to do it, and whether you're having to authenticate it
or describe the investigation that you've done. And in doing that,
what lessons have you learned that you can share with
attorneys that they should be mindful of when they're considering
(22:53):
the use of investigative evidence.
Speaker 6 (22:55):
Well, I think what we've what we've encountered is a
lot of it wasn't me. It was my twin brother,
it was my twin cousin. It was always the first.
The first things that usually comes out of the claimant's
mouth was it's it's prove it proved that that was me. Well,
that often can be done through facial features, hairlines. Tattoos
(23:16):
are usually our favorite when you see individual tattoos. I
can remember two cases, one of which where the claimant
was so adimant that it wasn't them that took the
image and posted it, that it was fought, and the
evidence was on a very specific page, and I remember
this page, page forty six, and it was so interesting
that the claiman's attorney did not catch on, nor did
the claimant, that the reflection was in the window showing
(23:40):
the same arm tattoo on their right elbow, and it
was just indisputable that the individual fought tooth and nil
that it wasn't them, prove it was me, and it
was very easily proven that this reflection. So there's a
lot of answers, sometimes not in front of our eyes,
but sometimes behind the image in the four granded background
of the person that actually led to that particular discovery
(24:00):
and proof that that was the it was the individual
in fact that and it wasn't done.
Speaker 1 (24:06):
So along those same lines, Marcus, let me ask you,
is we're preparing our case for a trial and weighing
the use of information obtained through surveillance and other investigation techniques.
Can you discuss the obstacles to admissibility of social media
evidence in general?
Speaker 3 (24:20):
Yes, I think generally social media evidence listens many of
the same questions and issues as any other type of evidence.
When we're talking about admissibility, First, is is it relevant
to the dispute? And then how do we authenticate the
social media evidence? So with respect to relevance, you know,
(24:43):
everyone understands rule for one, the federal rules of evidence,
and because most your instinctions kind of incorporate the same
ideas or respect to relevance. So really with social media,
what's unique is the manner of authenticating social media evidence.
(25:03):
Because traditional evidence such as medical records, personnel file materials, notes,
reports are physical.
Speaker 4 (25:11):
We have an identify somebody that is directly.
Speaker 3 (25:14):
Connected to it that you can go to and ask
to certify. Social media evidence isn't really traditionally the same way.
But so we have different jurisdictions have different approaches. You
have some more stringent preponderance to the evidence approaches, which
(25:35):
we can see in areas like Maryland, New York, Massachusetts,
and Mississippi, whereas of Texas and Louisiana take a somewhat
lessient prima facia sufficient evidence standard approach.
Speaker 4 (25:50):
But generally, regardless of what approach.
Speaker 3 (25:53):
It is, if you have a consciousness about how you
go about establishing that this social whther it's a social
media page, whether they're on private messages or direct messages,
whether they are photos, how do we prove that the
person we allege produced these messages took these photos. How
(26:14):
do we establish it they really were who we are
saying that they are, and are using it for the
purposes that were presenting it as So we've got, for instance,
sometimes we have testimony. We'll call somebody as a witness
in order to establish that yes they did take the photo,
yes they did send or receive the message.
Speaker 4 (26:37):
Other otherwise we can do.
Speaker 3 (26:40):
But it also depends on the nature of the social
media evidence that we're talking about. I think Michael was
talking about at the beginning of this talk about how
diverse what are we even talking.
Speaker 4 (26:51):
About when it comes to social media evidence?
Speaker 3 (26:54):
Because from when I kind of came up in the
Social Media Aid thirty three and my very first MySpace
page that they get created in two thousand and five.
So I've spent almost twenty years in the social media world.
So as you can imagine, things have dramatically changed and
(27:14):
in terms of how we interact online. So we've got
your traditional Facebook pages, your MySpace or what was MySpace
and now Instagram, so on and so forth.
Speaker 4 (27:25):
But then we've got.
Speaker 3 (27:26):
Things as we mentioned before Vinmo cash app, but also
things like your air tags on your your running around
with iPhone or Apple products or various other applications that
might not be traditional social media but our technology that
(27:49):
can be viewed in a diverse kind of perspective that,
depending on the nature of the facts in your case,
might be useful in improving things like as Michael mentioned before,
location We had a case where an injured person's claiming
this wasn't a comp case, it was a general liability case,
(28:11):
but was claiming that they weren't capable of doing various
activities and so a social media can this identified a
general business page for a pipe cleaning business that the
person was operating. Weren't really hiding it particularly well but
from the initial it was a business that was formulated
(28:32):
after the claims started, about a year or two after
the claim started. So that kind of goes back to
what I was saying before about making sure you're regularly
checking these things that the activities that these people are
engaged in. But that's not a traditional type of social media.
Speaker 4 (28:50):
Activity.
Speaker 3 (28:51):
That's still once we presented it to the person, it
wasn't an issue and authentication because they came to a
deposition with driving a truck that had the business name
attached to it. But I think all in all, being
creative and about understanding what the social media pages are,
(29:13):
what the different mechanisms are within them as well, can
assist when you're talking about authentication because when, for instance,
they've gotten multiple mechanisms on the Instagram alone, for instance,
that can be used to hide or conceal messages, and
(29:35):
if you have an awareness of them, there might be
certain amount of data, a certain amount of things like
let's say, for instance.
Speaker 4 (29:42):
You've got a.
Speaker 3 (29:44):
Claimant and somebody associated with that claimant and the associate
might have taken screen grabs of messages that otherwise would
have vanished or have been deleted. Then you can get
testimony from the individual too often to get the screenshots
of these messages that if you didn't have that individual,
(30:05):
you'd have a much harder time authenticating those messages. So,
first and foremost, I would say, canvas your jurisdiction in
order to see how they approach what their approach is
to authentication when it comes to social media, and then
build up as much support for the authenticity of the
(30:26):
social media evidence as possible so that you basically prevent
any attack that your opposing console can prevent can present
to undermine the validity of those.
Speaker 1 (30:39):
That evidence, right, And so along those same lines, you know,
to me Facebook, getting anything from Facebook is hearsay because
it's you know, not from a speaking witness, And so
if you have it looking forward to the motion and
elimonade before a trial, you want to stop any attack
on your evidence there. So that's why I would want
(31:01):
to have it at the time of the plaintiff's deposition,
to have the plaintiff admit that it is or have
them admit in request for admissions. Absolutely, and so can
you can you think of anything else in other ways
to avoid the hearsay defense at motion limited time?
Speaker 4 (31:25):
Right?
Speaker 3 (31:26):
Well, it would definitely a part of it is having
the person there right, having the entity there that we
are alleging either created whether, first of all, depends on
what we're talking about messages, are we talking about photos?
What is the evidence that we're talking about to the
extent that these are statements. The one of the difficult
(31:50):
things is if the party that we're alleging has made
the statement, maybe they made the statement to another party
that isn't available, then it just becomes just really difficult
to get it in. But I think that you, in
how I've seen certain jurisdictions approach it, if you've got
(32:11):
a body of evidence that makes it uplontantly clear that
this person that's a legendly didn't say these things, that
didn't send these things, really did say to send these things,
I think that you the judges are more often than
not going to allow it in than to sustain a
hearsay objection on it, because it's like, hey, all signs
are pointing to you said it, or you posted it,
(32:33):
or you did it. So I think it's really just
you build up as much evidence as you can to
support the fact that you are. You know, what you're
presenting it is is in fact how it really went out.
Speaker 2 (32:45):
Right, Amber, let me ask you, so, with with all
of these challenges that are involved maybe in getting the
evidence in and some of the things that Michael has
talked about, all these different sources that we have, have
you noticed any common pitfalls that you've run across where
(33:07):
attorneys are choosing to investigate or use social media as
part of a defense case That seem to come up
again and again.
Speaker 7 (33:16):
Yeah, I think some of.
Speaker 8 (33:17):
The common titfalls are just trying to obtain information from
social media sources that are private. I think attorneys, you know,
see that as a roadblock and then work to try
to obtain that private information in ways that may you know,
be unethical in the end game. For example, friending opposing parties.
(33:43):
That's something most most people, most attorneys are smart enough
to know they can't do it personally. But as Michael
mentioned earlier, it really comes in when you have people
on your team, you're paralegal looking at information, friending them,
sending messages, and.
Speaker 7 (33:59):
We know that that's it's not allowed. Judges aren't going
to go for that either.
Speaker 8 (34:03):
That's not been successful in cases where that the opposing
party has tried to get information at falsely.
Speaker 7 (34:11):
So one of the things again that I would suggest.
Speaker 8 (34:13):
Is when you're in that boat where you have information
you think that's on someone's social media profile that's private,
that you handle that in discovery. I think, like I said,
judges are becoming much more keen on the discoverability rather
than the expectation of privacy. You also have to be
very very careful when frending third parties. So if you
(34:36):
get a witness list from your opposing party, you want
to make sure when you're investigating those back witnesses that
you're also not engaging in the same type of misrepresentation.
You need to make very clear that you're telling those
people if you're looking into them, hey, I'm on the
defense side, I'm investigating this. And I think that's also
(35:00):
you know, we have a duty as attorneys to be
competent and to be competent in what we're doing and
the tools that we have. Social media is kind of
one of those areas that we have to be somewhat
competent in in twenty twenty four because it's just so
widely available, it's being used in litigation, and part of
being competent is knowing your limitations and so you hire
(35:23):
people like Michael that can help you do that help
you kind of avoid some of those ethical pitfalls that
you might find yourself in. And then one of the
other areas is friending a judge. I'm from New Orleans,
Marcus is from New Orleans. It's a very small legal community.
New Orleans is a city where you've been to high
school with people judges. That's something that's common most of
(35:47):
the cases we've seen. The judges and the courts are
well aware that just because you are friends with someone
on social media, you may never have met them before,
you may never have interact with them before. So as
an attorney, if you find yourself in that position where
you're friends with a judge, you should just disclose that
(36:09):
from the beginning. There have been cases where that wasn't disclosed,
or the judge was actually friends on social media with party,
not even the attorneys, but with a party, and it
wasn't disclosed until trial and that became a problem. So
I think it's important in that type of situation that
(36:30):
you make sure you're not friending the judge or there's
not you know, you're not liking the judges LinkedIn things.
Those kind of things can become an issue that you
should at least disclose going forward.
Speaker 3 (36:43):
Amber, I didn't have a question if because my understanding
what I've canvas some of the various jurisdictions is that
the question of whether or not a social media page
is public or private when it comes to social media,
and since it's admissibility, it's more of an issue of
(37:04):
how you're going about acquiring it rather than its actual admissibility.
Whereas I haven't seen one where because it was private,
whether it was a private message or a private board,
that that was created a barrier to its admissibility. It's
more like did you use another means in order to
(37:25):
acquire it?
Speaker 7 (37:26):
That's absolutely correct.
Speaker 8 (37:27):
I mentioned earlier in the Zimmerman case out of Pennsylvania
that there was a plaintiff who was claiming damages and
injuries that was clear was not the case based on
just his profile picture, and so the defense went to
the judge with emotion and said, hey, there's information here
(37:48):
in his social media on Facebook that we need to
discover because he has a picture of himself in shorts
with motorcycle gear on.
Speaker 7 (37:57):
And the judge agreed and said, he doesn't know your day.
He had to give over, you.
Speaker 8 (38:03):
Know, his Facebook, and the defense was able to look
at it. And then of course for the other side,
for plaintiffs, if they scrub up that social media, it
could be spoilation. And so that's not something that's something
that on the defense side we should be aware of
because that's something that we want to make sure is
not happening.
Speaker 7 (38:22):
Right.
Speaker 4 (38:24):
That was actually going to be my next question.
Speaker 8 (38:27):
This council would say, you know, from here on out,
like you need to be very careful what you do
on social media, but you can't delete anything that you've
already done.
Speaker 7 (38:35):
And if it comes to light that things have.
Speaker 8 (38:37):
Been deleted leading up to litigation, that can be a real,
a real big problem.
Speaker 10 (38:43):
So Ever, the takeaway that I'm hearing from you is
it certainly is a much safer course for defense counsel,
you know, defendants to engage the services of somebody like Michael,
somebody who can as a third party go through and
look at all of this information, look at all these
(39:05):
different sources of data, as opposed to trying to do
this in house.
Speaker 4 (39:09):
Is that right?
Speaker 1 (39:09):
Correct?
Speaker 4 (39:10):
Okay?
Speaker 6 (39:11):
And I had one additional pitfall which is pretty major,
and we're talking right now a lot of surface level.
Speaker 5 (39:19):
Searches where people are using Google. And I'm not saying
there's anything wrong with that.
Speaker 6 (39:23):
I mean it's perfect to figure out a veal palm
recipe or what time Batman's playing at the movies, because
it certainly shouldn't be rested upon an investigative laurel to
say that's the conclusion of this investigation. Google only provides
approximately one seven hundred of the amount of information that's available.
So the big question is if someone doesn't know what
they're doing, imagine what they're missing. And here's the pitfall.
(39:43):
Imagine the claimant's attorney knows that the claimant was a
church volunteer and is seen posted about helping at the church,
but it wasn't in the report. And now they're going
to potentially say, well, that's selective, Well why didn't you
put that in there? And it potentially could be while
the investigator did I missed it, I didn't see it,
(40:06):
or are you being selective because that might help their
case and make the claimant look a little bit tinder
to it, say a jury. So mised information is a
major pitfall when it comes to certain types. You never
want to get caught in a potential of being accused
of selective in what you've put into a report or
what you find. It's very likened to an investigator in
(40:27):
the field doing surveillance and stops videotaping when he sees
the claimant limping or using a visible orthopag device, right,
so that you don't want to do either. Both are
morally unethical. But it does come back to mised information
because people just don't understand the depths and the breath
of the Internet. Ninety four percent of the data is
(40:49):
found off of Google and off of being an off
of Yahoo.
Speaker 5 (40:53):
They just don't cash those types of pages. So you
have to go.
Speaker 6 (40:56):
You have to know where to look, how to look
and document and say preserve that information correctly.
Speaker 2 (41:02):
Michael, let me follow up on that, because so this
idea that you know, there's this limited amount that that
most of us are probably aware of, you know, like
you said, we're looking at the surface. So and this
might go a little bit beyond you know, what we're
talking about in terms of using it for defense, but
maybe something that will be interested in hearing about just
(41:24):
for our own lives, because obviously we're all tethered to
our smartphones right, and we use them all the time
and they're collecting all of this data. Can can you
just give us, you know, briefly anyway some aspects of
this tech that maybe we're not aware of as everyday
consumers of it that is out there and is accessible
(41:47):
and somebody like you might be able to use it
for a case, but we don't even know that it's so.
Speaker 6 (41:53):
And we've touched upon that briefly today. Both Amber and
Well actually had a good point in regards to the
data and Marcus as well when we talked about the fitbits. Right,
this wearable technology is and right now we're just evolving, right,
(42:14):
we're we're now heading.
Speaker 4 (42:16):
Into or we've been in the metaverse.
Speaker 6 (42:18):
We're at web three point zero and we've been there
for quite for quite sometimes, so we as as attorneys investigators,
we all have to evolve with the tech and understand
where it is and how big it's getting. With the
with the wearables, right that I found this very interesting
there is there are sites for every device that you
pretty much wear, right, So your fitbit has a community
that's a searchable that's a searchable arena for information about
(42:41):
a claimant. Your peloton if you write a peloton if
you can afford a peloton, if you.
Speaker 1 (42:44):
Write a peloton.
Speaker 6 (42:45):
But you're all lawyers can probably have two pelotons. That
information is searchable and you can determine and individuals.
Speaker 5 (42:52):
Use that's posted. That's posted.
Speaker 6 (42:54):
Same thing with your your your your your smart watches
that measure your coloric intakes, and your steps, and your
heart rates and how much you sweat.
Speaker 5 (43:05):
All of that is is discoverable, finable. We just talked
about this the other day.
Speaker 6 (43:10):
Easy pass on your vehicle, right, this tells if you
if you have something that said I can't drive or
I'm not driving, I'm not going anywhere. Well, let's subpoena
that easy pass. I understand not every state has it,
but if your state that you're in has it, let's
let's let's subpoena that that easy pass to see and
then we'll take it up a couple of notches to
Now the metaglasses and the oculists that are out there,
and we just recently had a poker player online that
(43:32):
we found through the oculus. Now granted it wasn't physical activity,
but if we're finding that data and no one else
even knows where to look, just imagine what else is
being missed by these other organizations or uh uh, individuals
that maybe shouldn't be looking for information and putting out
reports that says this is our completed report. We have
yet to lose an apples to apples comparison on any way.
(43:53):
That's given us a challenge because we have to we
have to know where to look.
Speaker 5 (43:59):
That is our our job is to know where that
information hides or lies. And right now everybody knows what a.
Speaker 6 (44:05):
Gigabyte is, right, megabyte, gigabyte, terabyte, Well, we are now
in what's called bronto byte stage. This is the size
of the Internet and storage. A brono byte is one
followed by twenty four zeros and growing by the second.
So we have a lot to be thankful for, and
we also have to we have a lot to be
(44:26):
knowledgeable of as this continues to move at lightning speed.
Speaker 5 (44:30):
Okay, assurance isn't necessarily.
Speaker 6 (44:33):
Fast and or furious, but there are there are tech
advances that are out there that are helped with either
risk analysis or potentially minority report style pre COG where
you can determine the person's going to commit fraud even
before it happens. Right, That's where we're heading out. That's
where some of the companies are are at today. Who
that answers some of that.
Speaker 2 (44:53):
Questions absolutely, And so before I throw it back to you, Steve,
I just want to thank you guys today. I I
feel like now we kind of know what we're looking
for and maybe how to use it and how to
use it without getting ourselves in trouble.
Speaker 1 (45:07):
Okay, so three key things. Thank you all very much, Marcus,
Michael Amber, great to have you all today, and thank
you for being on the podcast.
Speaker 5 (45:17):
Thank you very much, thank you, thank much, thank you
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