Expect social media surveillance in personal injury cases

Private investigators and social media mining are common tactics used by insurance companies to bring the severity or existence of a plaintiff’s injuries into question, says Ontario personal injury lawyer Dale Orlando.

“Surveillance is a fact of life,” says Orlando, a principal partner with McLeish Orlando LLP. “What I say to my clients generally is that surveillance and social media mining are only problematic if you’re not truthful about your reported limitations.”

That said, surveillance by a private investigator or social media mining doesn’t provide a complete picture of a person’s injuries and can be misleading, he says.

‘Snapshot in time’

“An Instagram or Facebook post is just a snapshot in time,” Orlando says. “You might go to your daughter’s wedding, and there’s a picture of you laughing and smiling. You might even be on the dance floor.

“What people don’t see is that you took pain medication prior to the wedding, and for the next two days, you weren’t able to get out of bed because you overdid it. But, of course, you’re not going to miss your daughter’s wedding,” he says.

A recent Toronto Sun column details the lengths one insurance company went to prevent having to pay benefits to a teen with a catastrophic injury.

A 17-year-old was rear-ended in a 2010 collision, and the Sun reports the insurance company was determined to play hardball with her.

“The insurance company had [her] followed for months as well as hired an investigator to mine her social media for incriminating photos to prove she was faking and wasn’t ‘catastrophically impaired’ at all,” the Sun reports.

‘Too pretty to be sick’

At one point, the insurance company’s lawyers suggested she “looked too pretty to be sick,” the article states.

“Their tactics were so heavy-handed that the arbitrator denounced the insurer’s conduct as ‘borderline harassment … rarely ever seen’ while ruling in favour of [the plaintiff].”

Orlando says while this matter may be on the extreme end, it’s good practice for a plaintiff to be aware that what they do and what they post is fair game.

“Our firm has a standard paragraph in our retainer letter that informs plaintiffs that they can expect their social media to be produced in a lawsuit. The retainer letter deals with surveillance as well,” he says.

“A good rule of thumb is to keep your accounts private and don’t post anything that might be embarrassing or damaging to your claim. Certainly, don’t tweet about your lawsuit — you shouldn’t be discussing your lawsuit with anybody.”