Insurance policies almost always contain a “cooperation clause,” which mandates that policyholders cooperate with the insurance investigation when there is a claim for loss. Insureds who fail to cooperate may lose their right to their claim. In liability cases, the insurance carriers for the defendants will likely ask for phone records, social media data, and any other information that might help their case, during the discovery phase.
As more insurance carriers demand that insureds turn over their cell phones and provide full access to their social media accounts, more policyholders are (rightly) starting to question how much data and information they need to turn over to the insurance carrier.
A recent American Bar Association article reviewed the rights of insurance companies to phone and social media data and the rights of insureds to restrict some or all access.
Why do insurance companies want phone records and social media data?
Smartphones can reveal a lot of information about claimants, such as:
- Their location history
- Their text messages
- Any voice mails
- A record of their emails
- Web searches
- Browsing history
Social media accounts can reveal:
- Text, videos, and photos that were posted
- The claimant’s friends and contacts
- IP addresses
- Messages to contacts
Some information may be relevant to the insurance carrier’s claim, such as confirming a claimant’s whereabouts. Conversations and photos may clarify the extent of the claimant’s loss and who has knowledge of any false claims. Many times, though, the data request violates the insured’s private interests and personal matters. Broad requests are often just fishing expeditions to find anything that might impact the claimant’s credibility, and that can reveal some very private and personal information about the claimant.
What are the rights of the insured to broad photo record and social media requests?
There are limits to what the insurance company can ask to see, and those limits have been upheld in the courts. Per the ABA:
- A North Carolina Supreme Court case held 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.”
- A Washington Supreme court case held that requests for information must be material to the claim.
- Discovery requests in various courts have required that requests for data be specific and relevant to the claim filed.
The ABA recommends that insureds ask their insurers what type of information they want. They should also ask, “Is there a less intrusive way to provide the information sought?”
If there isn’t a less intrusive way, insureds can still seek to have some control over the request by proposing:
- That an independent examiner conduct the inspection
- A protocol for allowing the insured to first review the information for issues of privacy and relevance – and to object to any improper information
- A dispute resolution mechanism
- Other relevant procedures
At Plattner Verderame, P.C., our Phoenix personal injury lawyers are skilled trial lawyers. We fight to protect your interests and your privacy at every step. We work to limit the information insurance companies can access legally. We file motions and objections when insurance companies exceed their authority. For help with any personal injury claim, call us at 602.266.2002 or use our contact form to schedule an appointment.
Nick is a member of the State Bar of Arizona, the Arizona Association for Justice (formerly the Arizona Trial Lawyers Association) and the American Association for Justice (AAJ). He currently serves on the AAJ’s Political Action Task Force and its Oversight Committee, and on the Board of Governors for Revitalization in Arizona.
Read more about Nick Verderame