SOCIAL AND DIGITAL MEDIA: FROM INJURY THROUGH TRIAL

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1 SOCIAL AND DIGITAL MEDIA: FROM INJURY THROUGH TRIAL Brian J. Lamoureux, Esq. Partner, Pannone Lopes Devereaux & O Gara LLC Practitioner Faculty, Providence College

2 Today s docket Quick social media overview Issue spotting Claim investigation/discovery Evidence Ethical considerations Scenarios Tips/best practices Food for thought

3 Facebook Collection of friends Can share photos, information, articles, and interests Has a familiar or social feeling to it Can adjust privacy settings to hide or reveal what you post or share Users now have more control and access to their content (which is good for investigators)

4 LinkedIn Similar model to Facebook Collection of connections But more professional Can share articles, news, and other professional interests Also can write recommendations for or endorse people in your network

5 Twitter Collection of followers Informal, snarky Limited to 280 characters Rapid-fire communication Inch-deep, mile wide Firehose stream of information

6 Claim investigation Injury occurs Investigation begins Understand what electronic devices Claimant had iphone? Samsung? (accelerometer, GPS) Fitbit? Apple Watch? These devices may be treasure trove of information All camera locations (time is of the essence due to overwriting)

7 Digital photos contain geotags and timestamps Geotags = latitude/longitude of where picture was taken Timestamps = time and date geofencing technology (e.g., SociaLinkd) looks for social media/pictures uploaded within vicinity and time of accident or incident) Witnesses and bystanders may have uploaded pictures of accident or incident

8 Texting Duh lol Most carriers do not keep text messages on servers for any length of time Local device only But Tip: iphone/ipad + Mac computer = archived texts, even if deleted from iphone (Command+Shift+G while in Finder)

9 Texting-While-Lying

10 Scenario Employer and Claimant are are both testifying The issue is whether the Claimant was inside a country club at the time he was struck by an errant golf ball and injured Claimant claims he was in the club when he was struck Claimant hands Judge this printout from his iphone

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21 If this happens: Be skeptical Ask: How do we know this is what it purports to be? Look for corroborating evidence, such as: Cellphone records which reveal time and date of each text Might need expert testimony of forensic analyst who examined the phone

22 What s the problem? Digital evidence can be: Destroyed (spoliation) Altered Fabricated Duplicated Spoofed/faked

23 All evidence must be Relevant Authentic Not hearsay (unless exception applies) Not unduly prejudicial

24 The Rules (quick recap) 104: Preliminary Questions 901: Authenticating or Identifying Evidence 902: Evidence That is Self-Authenticating (hard to use w/ social media material)

25 Rule 104 Court s gatekeeping function (a): Preliminary questions concerning the admissibility of evidence shall be determined by the court subject to the provisions of subdivision (b) (b): When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

26 Rule 901 Court s gatekeeping function (a): The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. TRANSLATION: Is this what it purports to be? Burden is slight and not a high hurdle to clear (McGovern v. Bank of America, N.A., 91 A.3d 853, 860 (R.I. 2014)

27 Rule 902 Self-authenticating evidence Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to (things like public records, newspapers, official publications, etc.) Note, however, new FEDERAL Rule 902 (2017): Certified data copied from an electronic device, storage medium, or file if authenticated by a process of digital identification, as shown by a certification of a qualified person Our 902 isn t there just yet

28 Rhode Island social media privacy law RIGL Social Media Privacy Act (2014) Creates right of privacy in social media accounts and passwords Protects passwords from disclosure Prohibits forced connections

29 RIGL exception Social media password requests prohibited. No employer shall: (1) Require, coerce, or request an employee or applicant to disclose the password or any other means for accessing a personal social media account; (2) Require, coerce, or request an employee or applicant to access a personal social media account in the presence of the employer or representative; (3) Require or coerce an employee or applicant to divulge any personal social media account information, except when reasonably believed to be relevant to an investigation of allegations of employee misconduct or workplace-related violation of applicable laws and regulations and when not otherwise prohibited by law or constitution; provided that the information is accessed and used solely to the extent necessary for purposes of that investigation or a related proceeding.

30 Facebook s Download Your Information What s included?

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38 How does someone get this file? Very easy Accountholder simply has to request it from Facebook no need to subpoena Facebook anymore Arrives via

39 A special note on This used to be available for download via Facebook tool Now only available in Activity Log

40 One final note on Facebook Listen carefully I deleted my Facebook account vs. I deactivated my Facebook account Listen carefully to what Claimant said they may have simply deactivated

41 One final note on Facebook Deactivate: data is still there Delete: data is actually deleted, but If this comes up, find out *when* deletion request was made data might still be there

42 Scenario Charlie and Betty Supervisor Charlie is an A+ worker Charlie is Facebook friends with many of his subordinates, including Betty Charlie knows that Betty is in an inter-racial marriage Off-hours, Charlie posts racially insensitive and obnoxious memes on his Facebook wall

43 Charlie and Betty One of them is a cartoon of Betty Boop in blackface Betty sees this and is highly offended She quits and files a WC claim for nervousness, anxiety, loss of appetite, and sweatiness Is this a compensable injury?

44 Charlie and Betty Martin v. RIPTA, 506 A.2d 1365 (R.I. 1986) Bus driver harassed while on job and during work hours Supreme Court awarded benefits for stress, despite no physical injury

45 Charlie and Betty After he quit, he was assaulted by the shop steward outside a bar Supreme Court agreed that this incident was not attributable to RIPTA since he was no longer employed Question: would Supreme Court therefore agree that off-hours social media posting is in the same category? Unsettled question

46 Fitbits and other health trackers Wearable devices such as FitBits Amazon Echo and similar devices Strava (which logs and maps people s running routes) Thermostats which sense motion Doorbells which record images, video, and sound (e.g., Ring) Security cameras Expert witness likely necessary to authenticate (and probably explain)

47 The Internet of What?

48 The Internet of Things, such as

49 And

50 Fundamental premises: 1. Devices which can accept, store, send, and interpret data 2. Data source is most often human behavior or characteristics ( digital bread crumbs ) 3. Data has value 4. Connected data has more value 5. Future decisions are made based on that data

51 Who cares? Mosaics of information Can be used to pre-screen, discover, or discriminate Staggering amount of information People don t seem to care

52 Fitbits Privacy Policy We may preserve or disclose information about you to comply with a law, regulation, legal process, or governmental request; to assert legal rights or defend against legal claims; or to prevent, detect, or investigate illegal activity, fraud, abuse, violations of our terms, or threats to the security of the Services or the physical safety of any person. Please note: Our policy is to notify you of legal process seeking access to your information, such as search warrants, court orders, or subpoenas, unless we are prohibited by law from doing so

53 Fitbits Download tracker data

54 Fitbits Download GPS location data

55 Ring doorbell No matter where injury occurred Claimant or neighbors may have Ring doorbells which are motion activated Fewer privacy concerns, especially if camera aimed toward streets

56 Ring doorbell

57 In conclusion, some other tips: Consider partnering with electronic evidence collection firm Download contents of entire phone in matter of minutes (Caution note: privacy concerns of over-gathering) When investigating: does employer have a social media and technology policy?

58 THANK YOU Questions?