This article originally appeared on Law360.com on March 21, 2016.
In cases where individuals are claiming brain injury or reduced cognitive abilities as the result of an accident, medical procedure or taking a specific drug, there are many ways to attempt to demonstrate if they are or are not telling the truth.
With so much of the world now using social media from posting on Facebook to sharing photos on Instagram to tweeting all range of information, can social media be a helpful measure of cognitive ability?
Increasingly it is coming into play in a variety of lawsuits, from the content of an individual’s postings to activity that seemingly conflicts with claims. But is it a fair measure? Studies seem inconclusive on the subject so far, but that hasn’t stopped attorneys from raising the question and requesting full access to social media accounts to reveal potentially damaging activity.
Content of Posts
One of the easiest ways social media is used to discredit claims of brain injury is when a subject posts content directly refuting such claims. Dr. David Reiss, a psychiatrist in private practice in San Diego, served as an expert on a case where an individual was claiming to be totally disabled both physically and mentally yet was posting about a successful business on Facebook.
Dr. Reiss says they posted about attending meetings and winning a car for their sales, yet when questioned admitted that those were lies. “It’s whether they are able to attempt to work versus whether they are successful,” he says. “They were at least able to go to meetings and put these posts together, so at worst they were partially disabled.”
In my company’s work collecting and preserving historic and real-time social media data on individuals, we have come across individuals directly stating they are looking for someone to sue for big money, individuals running marathon after marathon who are claiming injury and people regularly traveling and going about their day-to-day lives who are maintaining they have a reduced quality of life.
Does setting up a Facebook page or other social media account from scratch require a certain level of cognitive function?
In Winchell v. Lopiccolo (N.Y. Sup Ct 2012), the plaintiff claimed “impaired cognitive functioning” after a car accident, and the defense maintained that the layout of her Facebook would demonstrate cognitive function. They requested access to the plaintiff’s private profile, contending, “the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing or a lack thereof would be useful in the defense and/or assessment of this case.”
The court did not agree, stating “the party demanding access to social networking accounts must show that the method of discovery will lead to ‘the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information that bears on the claims,’ … defendants cannot point to anything concrete. Instead, they hope to divine the extent of Plaintiff’s cognitive injuries from reading every bit of information on her Facebook page.”
Dr. Reiss disagrees, “It may have taken [a person] a long time to set up the page, but the fact that they did it shows they are not totally disabled and there is a capability to accomplish something.”
Length of Posts and Response Time
Another measure of cognitive ability that is frequently overlooked is close examination of the posts, messages and interactions on a social media account.
In an ongoing case where an individual was claiming a dramatic loss of brain function and the inability to concentrate for even a short amount of time as the result of an accident, we served as an expert in social media working with a psychiatrist to examine this person’s Facebook activity. After being granted access to the plaintiff’s full Facebook profile, we closely examined the length of postings and messages to help demonstrate some ability to concentrate, at least long enough to draft a somewhat lengthy post. By looking at the length of the message and how long it took the plaintiff to respond, the psychiatrist was able to offer an opinion of the person’s true ability to concentrate.
Dr. Reiss also notes that even repetitive posting on Twitter where a person may be going back and forth with other users shows they can concentrate for a period of time.
Social media, especially Facebook, is filled with all manner of games from sudoku to Farmville. Does the ability to play some of these games speak to a person’s mental capacity?
My company has been asked to preserve and examine a person’s game-playing specifically on Facebook, helping attorneys determine what games were played, what levels were achieved and for how long they played.
Numerous studies, however, have shown that Facebook and other social media can be beneficial to individuals with dementia or brain injury both in improving cognitive ability and for socialization. So the case could be made that these games are being played precisely because the individual does have reduced cognitive function.
Plus, according to Dr. Reiss, just because an individual is playing a game doesn’t mean that he or she is not struggling with it or necessarily good at it. But you can look at exactly what they are doing, how often they are doing it and for how long, he says, noting these activities can reveal information about concentration, endurance and their ability to be logically focused.
Accessing This Data
While some social media data may be public and accessible to attorneys, it may not be easy to capture with credibility and to review. Social media experts and companies who mine such data for attorneys may be able to provide public downloads into easier-to-review formats, such as spreadsheets or PDFs. Spreadsheets are sortable by numerous variables, including date, type of post and content. This can make finding the right data much more efficient and result in data that is verifiable because it has attached metadata as opposed to capturing a screenshot, which the prosecuting attorney could argue could have been altered.
Such information can also be downloaded in full, complete with private messages, original image files and metadata, if the plaintiff has been compelled to hand over their username and password.
If such data could become valuable at any point during the case, it’s important to download and preserve that data using a verifiable method, as quickly as possible before any items are deleted. Some firms even offer the ability to demonstrate spoliation when data that has been preserved is altered or deleted after plaintiffs have been advised against such activities.
Additionally, attorneys can request a full download from Facebook or Twitter from within the individual’s account. These downloads provide information about log-in and log-out times and length of sessions within the past few months, so again it’s important to ask for this data set quickly before too much time has passed.
Have you considered using social media as a measurement of brain function in cases where mental disability is at issue? “I expect social media will grow as a source of information for such cases,” says Dr. Reiss. “I think [attorneys] will probably get a lot more information if they routinely took a look at social media.”
Lyn Mettler is the president of Step Ahead Social Research, a company that uses automated software systems to collect, preserve and validate public social media and Web data for attorneys.