by Claire E. Carson –
Bookmark this page! It contains many useful links for researching your claims.
Do you sometimes find that your claims do not add up? For example, despite claimant being off work TTD, a coworker reports she is playing in a softball game on a local softball league; or, despite claimant being off work TTD for an extended period of time a coworker sees her at a local swap meet moving without difficulty and notices she has pink fingers (which is often indicative of farm workers who pick strawberries) or, despite claimant being off work TTD on a back claim with 9 out of 10 pain level complaints, the lumbar spine MRI and bilateral EMG/NCV testing is normal, etc. etc. etc. As we all unfortunately know, the examples of these apparent discrepancies are endless.
In cases where you have an articulable suspicion of misconduct, an investigation within the course and scope of your employment is permissible per California Civil Code section 1708.8.
This article describes quick, easy and free discovery of public information online. The benefits of performing an initial quick easy and free investigation include, but are limited to, the low cost (did I mention it was free?), easy (see this article below for links), and quick (readily available online with a few keystrokes). Further, performing this initial investigation will assist to direct your more formal (i.e. not free) discovery in a targeted and cost-effective manner thereafter.
To date Facebook is the best resource to obtain public information provided by the claimant and/or her “friends” about the claimant’s past, present and future activities.
First: Set up a different Facebook account.
Second: Find the claimant.
Does the claimant have a common name or are you unable to find an account? Don’t disregard free information you can find on spokeo.com and peoplefinders.com because those websites will list possible relatives. If the possible relatives have uncommon names, the relatives’ public information can often be easily found on Facebook. A relative’s Facebook page with a public friends list might help you find your claimant’s own Facebook page. This is helpful when the claimant is using Facebook under a nickname or a different spelling.
I once had a case where the claimant said he had to move to out of state because he could not afford to live in California anymore. He also claimed to a psyche QME that he was “socially withdrawn”, tearful, and fearful about his financial future since he was not working. Claimant’s own public Facebook postings were innocuous. However, the public Facebook postings of his close relative contained many photographs of the claimant at several restaurants close in time to the psyche evaluation. Further, the relative thanked the claimant for sharing a significant portion of the money the claimant recently won at the casino. (And no, casino winnings do not count against TD, unfortunately – I checked.) Claimant’s attorney objected to the records being sent to the PQME. I filed a DOR and was ultimately successful in obtaining a Stipulation and Order that permitted the most relevant portions of the records to be sent to the PQME.
Third: Know your limitations.
Of course, there are limits to obtaining Facebook information. No direct contact with a claimant may be made by a defense attorney if the claimant is represented by counsel. (No, we cannot ‘friend’ a claimant, but you already knew that.) Also, Facebook cannot be subpoenaed directly. (https://www.facebook.com/help/473784375984502) The records must be requested via a reasonably tailored (i.e. not vague or overbroad) Demand for Production of Documents. The records are then to be produced per the directions provided by Facebook. (https://www.facebook.com/help/212802592074644?helpref=faq_content)
Can a claimant just delete the account and/or clean up the profile? A claimant’s attorney cannot recommend a client “clean up” their Facebook account as it is considered “spoliation of evidence.” A plaintiff’s attorney in Virginia was the subject of an order to pay defense attorney fees of $542,000 for such a recommendation. The plaintiff himself was also ordered to pay $180,000 in defense attorney fees for following his attorney’s recommendation. (Isaiah Lester v. Allied concrete Company, Circuit Court of Charlottesville, Case No. CL08-150)
If the Facebook download directions are followed, almost all activity will be downloaded. See this link for the information the download will produce. (https://www.facebook.com/help/405183566203254?helpref=faq_content) Putting on my reasonableness cap, I would have to agree that reasonable redaction of irrelevant information is permitted. (No one cares about a claimant’s views on the 2016 election, thank goodness) Keep in mind though that if there is a claim for psychological injury and claimant told a psyche QME that she is “socially withdrawn”, I would argue that her posts regarding attending her weekly Pro-[insert issue here] club are directly relevant to her psyche claim. (Don’t forget quick searches of Yelp.com too for restaurant reviews)
Can claimant have the Facebook account entirely private? Of course, but that does not make the account immune from a proper Demand for Production of Documents and/or discovery order. It just makes the posts harder to see right now. It also does not prohibit claimant’s public postings on other people’s public accounts from being viewed right now. Review the file for co-workers and/or close family names. A review of an applicant’s friends’ public information is fair game, too.
Indeed, in EEOC v. The Original HoneyBaked Ham Co (2013) U.S. Dist. LEXI 26887 (D. Colo. Feb. 27, 2013), the court ordered production of extensive cellular and online electronically stored information, inter alia, “all necessary information to access any social media websites used by a claimant class member during [the relevant period]; and all necessary information to access any email account or blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures during said period.” Note that in that case the produced information was subject to Special Master/in camera review for relevance and/or privacy.
Fourth: Keep it on the low until absolutely necessary
For practical purposes a defense attorney would not let on that a Facebook account was located until a significant event is reported (ie a spine surgery candidate posts a snowy picture and comments about “tearing up the [ski] slopes”). Even then, again as a practical matter, an activities check would be requested to determine if sub rosa video can be obtained. If we demand the Facebook records too soon, claimant will stop posting and will likely be warned of possible sub rosa attempts. Facebook records are arguably already in the custody and control of the claimant so as a defendant there is no duty to produce them before they become relevant to the defense of the claim during the discovery period. (If you do decide to use them at trial, generally the printouts should be served on claimant’s counsel prior to an MSC and then listed on a Pre-Trial Conference Statement.)
Fifth: Don’t forget other sources of quick, easy and free information you can obtain right now
Several of the California Superior Courts have websites where a claimant’s name and birthdate can produce criminal, civil, traffic, small claims, and/or family law case numbers and status. Many are free and easy to access.
Kern County: https://www.kern.courts.ca.gov/
Santa Barbara County: http://www.sbcourts.org/ or
Ventura County: http://www.ventura.courts.ca.gov/case-inquiry.html
The Riverside and Los Angeles Superior Court’s website requires payment per search. I leave it to professional investigators to obtain this.
Also, this is a good link for inmate searches for all California Counties, not just Kern: http://www.kerninmatesearch.org/California_Inmate_Search.html#.WIvLZ1Pae70
Licensing websites/Local newspapers/Ebay/Twitter
Although we all know the attorney (http://www.calbar.ca.gov/) and medical licensing lookup (http://www.dca.ca.gov/consumer/wll.shtml) websites, lesser known licensing websites include the Contractors State Licensing Board. This is especially helpful in independent contractor vs employee disputes.
The contractor’s license lookup website will also produce workers’ compensation insurance coverage information, but that is a whole different episode of Oprah. (For completeness the WCIRB website is https://www.caworkcompcoverage.com/)
Back to the topic at hand – local newspapers often report local softball league results, crimes, arrests, etc. These are most easily searched via Google to start. Ebay can sometimes evidence an online store but unless you already have a claimant’s username it can be difficult to search. People often do not use their full names on Twitter either, but they can sometimes link their Facebook pages to Twitter and vice versa so it can be worth a quick search of Twitter, too.
Sixth: Trust but verify
I recommend that any information found be verified by other sources before being presented to a Court or a QME. In other words, make reasonably certain you have the right claimant. Your quick easy and free investigation should be followed by reasonable document demands and/or subpoenas.
In conclusion, there are a number of ways to obtain free public information about a claim quickly and easily via the links supplied above. However, you need to know the limitations and be sure to hold off on using the information until the time is right. Finally, make sure the information is independently verified before presenting to a Court or QME.
I am sure this post does not include all quick, easy, and free websites for information. Have you discovered a helpful website not mentioned above? If so, please share via comment below.
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