PRESENTED FEB. 25, 2016

1. 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

2. Emerging& Complex
InsuranceClaims Forum
February 25-26, 2016

3. Speakers
Mollie E. Werwas
Kopon Airdo, LLC
233 S. Wacker Dr., Suite 4450
Chicago, Illinois 60606
P: 312.506.4450
www.koponairdo.com
Jeanne M. Sheahan
Senior Corporate Counsel, Privacy & Regulatory
Groupon, Inc.
jsheahan@groupon.com

4.  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?

5.  Websites for social networking
 Wikis (websites that allow collaborative editing)
 Open content encyclopedia
 Blogging
 Microblogging
 Videos
Social Media – Examples

6. Extensive social media beyond
Facebook…
Social Media – Companies

7. Delicious – social bookmarking service
Digg – social news and curation
Reddit – online bulletin board system
Last.fm – music discovery & social networking site
Flickr – social image and video hosting
Foursquare – social media site focusing on geolocation
Tumblr – microblogging and social platform
Social Media – Companies

8. …and they are constantly
evolving and growing in
numbers!
Social Media – Companies

10. • 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?

11.  Social media websites
 Blogs
 Wikis
 Folksonomies (collaborative/social tagging)
 Video sharing
 Mashups (content combined from multiple sources)
Web 2.0 – Examples

12. Just the beginning
of the explosion of
data and big data…
Social Media & Web 2.0

13. 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?

14.  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?

15.  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

16. Data Points / Information –
What Can Be Learned
 Name
 Race
 Gender
 Age
 Income Bracket
 Likeness
 Birthday
 Address

17. Data Points / Information –
What Can Be Learned
 Geographic
Coordinates
 Destinations
 Speed of Travel
 Frequency of Visits
 Political Affiliation
 Hobbies
 Organizational
Membership

18. Data Points / Information –
What Can Be Learned
 Health Status
 Diet
 Relationship Status
 Sexual orientation
 Personal Network
 Professional
Network
 Employer
 Job History
 Education History

19. Data Points / Information –
What Can Be Learned
…and these categories are constantly
evolving & expanding

20.  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

21. Social Media / Demographics

22.  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

23.  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

24.  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

25. 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

26. 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

27. Social Media: The New
Surveillance

28. Key Take-Aways for Claim Professionals
Social Media Investigations are Essential to
Effective Claim Handling
Public Leads to Private
Claimants are Strangers No More
Data is the new Eye Witness

29. Social Media in Litigation

30. • No Fishing Expeditions
• Targeted Requests Based on
Known Information
• Examine Public Info First
Guidance from Recent Court Decision

31. Personal Injury Decision
Zimmerman 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 visible
Court allowed the discovery of the
materials

32. Personal Injury Decision
Tompkins v. Detroit Metro Airport., 278 F.R.D. 387 (E.D. Mich. 2012).
Slip and fall case
Defendant moved to compel entire
Facebook account
Motion Denied because public
Facebook information not inconsistent
with claimed injury
No Fishing Expeditions
Need an initial showing of relevant
information

33. Personal Injury Decision
Thompson 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
lifestyle
Motion Granted

34. Employment Claim
Ex-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.

35. By a Plaintiff: The FitBit
 Recent Canadian Case
 Plaintiff – Personal Trainer
 Presented Pre-Accident & Post-
Accident FitBit
 Data to support reduced
activity after injury

36. Social Media You Can Use!

37. Capture the Information
Don’t Lose the Results of Your Investigation!

38. • 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

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

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

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

42. Ethical Considerations

43. 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

44. Questions?