by Vincent A. Toreno, Esq.
Technology seems to progress at an ever-increasing rate. In the past decade, there has been an explosion of technology including smart phones (essentially handheld computers) and wearable devices like Fitbit, that can track movement and record fitness data. Further, the data collected by personal devices and information transmitted or posted on social media is often relevant to issues involved in workers’ compensation and civil litigation. Discovery of this information can be very important; however, technology often outpaces the legal decisions regarding how the information can be used in a claim. In Georgia, there are few legal decisions about the discoverability of social media and information collected by personal devices. Federal cases provide some guidance.
Privacy is a big concern and courts are reluctant to require someone to produce information intended to be private. However, valuable information is often posted on Facebook, Twitter and Instagram and other applications with privacy settings that include “public.” Courts are much more willing to allow discovery of information clearly intended to be public because there is no expectation that it would be kept private. But just because information was not necessarily intended to be public does not mean it is not subject to discovery. A private communication on social media should not be any less discoverable than a private conversation or private email or letter written by a party to litigation. The key will be to show the court that the information is likely relevant to issues in the case. In Georgia, the standard is whether the information is relevant and calculated to lead to the discovery of admissible evidence. General “fishing expeditions” into the private lives of claimants are usually not allowed so showing of relevance will be necessary to overcome an objection to such inquiries. To be relevant, the information requested should be directly related to the employee’s activities, symptoms, or condition insofar as their workers’ compensation injury. There should exist other evidence, whether from medical records, the employer or witnesses, that the employee is exaggerating symptoms or not being completely truthful regarding the claim and therefore information obtained from social media or other applications may reveal relevant information.
A search of all publicly available information e.g. Facebook, Twitter, Instagram, etc., should be performed early in the claim process. Once a claim is in litigation, we recommend discovery requests targeted to learning whether the claimant has a smartphone (of course they do), a wearable device, a list of applications on those devices, as well as membership in all online social media so that targeted discovery requests can be sent seeking that information. Care must be taken not to communicate directly with an adverse party in a lawsuit or workers’ compensation claim. Of course, conduct such as “friending” an opposing party would likely be deemed impermissible contact. While discovery of social media and information logged and generated by smartphones and wearable devices may not be common practice, it is simply the next logical step brought on by the evolution of technology.