DEALING WITH DEMANDS FOR PHONE INSPECTIONS AND SOCIAL MEDIA ACCOUNT DATA DURING CLAIM INVESTIGATIONS

• Published in: The Brief (Chicago. 1980) Vol. 49; no. 3; pp. 33 - 35
• Main Author: Rudin, Justin
• Format: Journal Article
• Language: English
• Published: Chicago American Bar Association 01.04.2020
• Subjects: Archives & records; Cellular telephones; Criminal investigations; Insurance claims; Law; Property & casualty insurance; Protocol; Social networks
• ISSN: 0273-0995; 2163-0178

Rather, the insurer's requests for information must be material to the circumstances giving rise to liability on its part.2 For example, Chavis v State Farm Fire & Casualty Co. dealt with a broad release of financial information, with the insurer requesting the insured to "authorize any representative of all banks and/or any type of lending institution which I have done any business with to consult with and/or deliver to any representative of [the insurer] any and all records referred to or requested by any representative of [the insurer]"3 In this case, the North Carolina Supreme Court found that an insurer does not have an "unlimited right to roam at will through all of the insureds' . . . records without the restriction of reasonableness and specificity. "4 The Washington Supreme Court, in Tran v State Farm Fire & Casualty Co., agreed that "an insurance company should not have license to burden an insured with demands for items that are immaterial. "5 Courts addressing discovery disputes over electronic data and social media information under the rules of civil procedure have taken a similar view.6 Thus, one of the key factors that courts consider before ordering forensic examination of electronic devices is the specificity of the request and its relevance to the action.7 Responding to Insurer Demands In light of these principles, policyholders should respond to carriers demanding a cell phone inspection or production of social media activity by expressing their legitimate concerns that these requests will involve the disclosure of private and irrelevant information. Forensic examinations of mobile devices require an extraction of all of the items from a specified category from the device before sorting through the data; in other words, the extraction cannot be limited to a certain time period or to certain subjects (e.g., if text messages are sought, all text messages will be collected- not just those involving conversations between specific people or phone numbers).