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PHILADELPHIA — Social media, mobile technology and other forms of electronic technology can be powerful tools to defend against disability insurance claims.
At the same time, employers, disability insurers and their attorneys must observe the evolving legal parameters governing the accessibility, use and protection of certain types of electronic information in court, experts say.
“There's a treasure trove of valuable information available through social media when it comes to disability claims,” said Kristina Pett, a founding member at Pett Furman P.L. in Boca Raton, Florida.
Courts have routinely upheld employers' and insurers' rights to use certain information mined from publicly available social media accounts belonging to claimants and witnesses to disprove claims of limited function or capacity due to a disability, she said.
Similarly, experts said during the American Conference Institute's 17th National Advanced Forum on Litigating Disability Insurance Claims, attorneys may be able to persuade courts to grant limited access to plaintiffs accounts for wearable fitness tracking devices, smartphone applications and other mobile technologies.
“This is a wonderful topic because it forces us all to think about stuff that we really haven't thought of before,” said Robert Scott, managing partner of the Law Offices of Robert K. Scott in Irvine, California. “There are still thresholds here that we've yet to cross.”
However, defense attorneys and claims investigators gathering evidence via social media are limited to information their clients already can access or is publicly available, experts said.
Aside from its probable inadmissibility as evidence, experts said information gathered from social media accounts through deceitful or unethical means — including that collected by third parties — could expose attorneys to violations of the American Bar Association's Rules of Professional Conduct.
“You can ask plaintiffs and witnesses to provide you with access to their accounts, but you must be honest about your purpose for requesting that access,” Ms. Pett said.
To the extent their litigation strategy in defending a disability claim includes the use of electronic medical records and other personal health information, employers, insurers and their attorneys have obligations to protect that information under two federal laws — the Health Insurance Portability and Affordability Act and the Health Information Technology for Economic and Clinical Health Act. “You can never be prudent enough when it comes to HIPAA compliance,” said Lisa Bondurant, an Atlanta-based partner at Womble Carlyle Sandridge & Rice L.L.P.
Under federal law, most entities that create, maintain, transmit or receive electronic personal health information are required to establish administrative, physical and technical safeguards to prevent “reasonably anticipated” unauthorized access, use, modification or disclosure of that information.
Unfortunately, experts say, the speed and intricacy with which cyber security threats evolve make the task of protecting sensitive data, such as personal health information, particularly daunting. “What's reasonable to anticipate today is far different than what would have been thought of as reasonable a year ago,” said Bryan Bolton, a founding partner and vice president at Funk & Bolton P.A. in Baltimore. “The (data security) standards under HIPAA and HITECH are moving, not static, and you need to be mindful of that.”