Social Media: Now You “Like” It, Now You Don’t

Social Media as a Claims Tool in Claims Handling & Litigation | Pitfalls and Advantages for Companies | Securing Access | Discovery | Ethical Considerations

Emerging & Complex Insurance Claims ForumFebruary 25-26, 2016

Speakers

Mollie E. WerwasKopon Airdo, LLC233 S. Wacker Dr., Suite 4450Chicago, Illinois 60606P: 312.506.4450www.koponairdo.com

Jeanne M. SheahanSenior Corporate Counsel, Privacy & RegulatoryGroupon, Inc.jsheahan@groupon.com

Any “form[] of electronic communication . . . through which users create online communities to share information, ideas, personal messages, and other content” -- Merriam-Webster

Users can interact with the website to create and share information and ideas with other visitors

Social Media – What is It?

Websites for social networking Wikis (websites that allow collaborative editing) Open content encyclopedia Blogging Microblogging Videos

Social Media – Examples

Extensive social media beyond Facebook…

Social Media – Companies

Delicious – social bookmarking serviceDigg – social news and curationReddit – online bulletin board systemLast.fm – music discovery & social networking siteFlickr – social image and video hostingFoursquare – social media site focusing on geolocationTumblr – microblogging and social platform

Social Media – Companies

…and they are constantly evolving and growing in numbers!

Social Media – Companies

• Umbrella term for the second wave of the world wide web

• Websites that focus on user-generated content, collaboration, and social networking

• Shift to cloud computing

Web 2.0 – What Is It?

Social media websites Blogs Wikis Folksonomies (collaborative/social tagging) Video sharing Mashups (content combined from multiple sources)

Web 2.0 – Examples

Just the beginning of the explosion of data and big data…

Social Media & Web 2.0

Network sensors embedded in physical objects, which enable the objects to collect and exchange data

Devices, vehicles, buildings that are embedded with electronics

Internet of Things – What is It?

Cisco predicts that by 2020 there will be around 50 billion internet-connected objects

The Digital Universe (“DU”) – all digital data that is created, replicated, and consumed in a single year – by 2013 was already estimated to be 4.4 ZB

A zetabyte is 1 trillion gigabytes One stack of iPads reaching two-thirds the way to the moon

Internet of Things – What is It?

Smart Homes – cell phones, coffee makers, washing machines, security systems

Smart Transportation – bikes, cars, public transport, airplane jets

Smart Cities – traffic congestion, water leakages, smart parking

Internet of Things - Examples

Data Points / Information – What Can Be Learned

Name Race Gender Age

Income Bracket Likeness Birthday Address

Data Points / Information – What Can Be Learned Geographic

Coordinates Destinations Speed of Travel Frequency of Visits

Political Affiliation Hobbies Organizational

Membership

Data Points / Information – What Can Be Learned Health Status

Diet Relationship Status Sexual orientation Personal Network

Professional Network

Employer Job History Education History

Data Points / Information – What Can Be Learned

…and these categories are constantly evolving & expanding

Popularity of Social Media Platforms Influenced by Age

Millennial teens are spending on average 11.7 hours a day using connected devices

Bellwether of future landscape in social media sphere

Social Media / Demographics

Social Media / Demographics

Vine Social media app that lets

users post looping six-second video clips

Founded in June 2012 Twitter-owned company As of December 2015, Vine

has 200 million active users

Social Media / Demographics - Examples

Kik Instant messenger Allows users to find and share content Known for ability to preserve user

anonymity Founded in 2009 Has approximately 240 million users as

of December 2015 Used by approximately 40% of US

teenagers

Social Media / Demographics - Examples

Yik Yak Allows people to pseudo-anonymously

create discussion threats within a 5-mile radius (which are termed “Yaks” by the application)

Launched in 2013 All users have the ability to contribute to

the stream by writing, responding, and “voting up” or “voting down” (liking or disliking) Yaks

Millions of users (exact number has not been disclosed)

Social Media / Demographics - Examples

European Law: Important Distinctions In general, regulations in the EU are much more strict & robust in the area of

privacy and security Privacy in the EU is protected as a “fundamental right” under the EU’s Charter

of Fundamental Rights EU has comprehensive data protection regulations, unlike the US, which is

governed by a patchwork of federal and state regulations that apply a sectoral approach (e.g., finance, health care)

In the EU, personal data only can be collected under strict conditions and for a legitimate purpose

European Law: Important Distinctions EU privacy landscape if rapidly changing

Safe Harbor Privacy Shield Data Protection Directive (95/46/EC) General Data Protection

Regulation (GDPR)• Expected to come into force in 2018

Right to Erasure (“Right to be Forgotten”) Data subjects will have the right to request the deletion of his/her data

from data controller in specified circumstances

Social Media: The New Surveillance

Key Take-Aways for Claim Professionals

Social Media Investigations are Essential to Effective Claim Handling

Public Leads to PrivateClaimants are Strangers No MoreData is the new Eye Witness

Social Media in Litigation

• No Fishing Expeditions

• Targeted Requests Based on Known Information

• Examine Public Info First

Guidance from Recent Court Decision

Personal Injury DecisionZimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011).

Plaintiff injured his leg in a forklift accident

Sought damages for scarring and embarrassment, a serious impairment of health, and a diminished ability to enjoy life

Pictures on Facebook revealed plaintiff riding a motorcycle and wearing shorts where scar is clearly visibleCourt allowed the discovery of the materials

Personal Injury DecisionTompkins v. Detroit Metro Airport., 278 F.R.D. 387 (E.D. Mich. 2012).

Slip and fall caseDefendant moved to compel entire Facebook accountMotion Denied because public Facebook information not inconsistent with claimed injury

No Fishing ExpeditionsNeed an initial showing of relevant information

Personal Injury DecisionThompson v. Autoliv ASP, Inc., 2012 WL 23442928 (D. Nev.)

Motor Vehicle Case

Defendant moved to compel Plaintiff’s social media accounts

Prior to filing Motion, Defendant obtained public information that Plaintiff’s profile showed post-accident lifestyleMotion Granted

Employment ClaimEx-Mai-Trang Thi Nguyen v. Starbucks Coffee Corp., 2009 U.S. Dist. LEXIS 113461 (N.D. Cal. 2009)

Employee fired for inappropriate behavior and threats to other employees. Sued for sexual harassment, retaliation, religious discrimination.

“Starbucks is in deep shit with GOD!!! …I will now have 2 to turn 2 my revenge side (GOD’S REVENGE SIDE) 2 teach da world a lesson about stepping on GOD. I thank GOD 4 pot 2 calm down my frustrations and worries or else I will go beserk and shoot everyone….”

Summary judgment for the defendant.

By a Plaintiff: The FitBit Recent Canadian Case

Plaintiff – Personal Trainer

Presented Pre-Accident & Post-Accident FitBit

Data to support reduced activity after injury

Social Media You Can Use!

Capture the Information

Don’t Lose the Results of Your Investigation!

• Check all applicable social media for public pages

• Start with web engine searches• Look for information around date

of loss• Examine other linked or connected

accounts and personal connections

Effective Social Media Investigations

Preserve the Evidence

• Print/Save the Findings• Do not assume it will be there later• Save on paper and electronically• Check early and often!

Formal Discovery Requests

• Specific Requests• Targeted Based on Public Information• Initial Requests / Follow-Up Inquiries• Deposition Questions

Other Data Sources

• Web 2.0• Fitness Trackers• Health Apps, Diaries, Logs• Linked to Social Media• Texts, Photos, Apps, Etc.

Ethical Considerations

BEWARE OF “FRIENDING” Cannot “friend” someone under a false

pretext

Do NOT try to obtain private social media information by pretending to be a disinterested party

Use public information to establish a basis for requesting private information

Questions?