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The Grieving Families Act and eDiscovery

The Grieving Families Act and eDiscovery

What does the Grieving Families Act mean for eDiscovery?

The Grieving Families Act: Bill S74A has been passed by New York State Senate and is currently under review by Governor Kathy Hochul. The proposed Bill contains significant amendments to New York’s Wrongful Death Law—a law which has not changed since the mid-nineteenth century. If the Grieving Families Act is signed into law, eDiscovery—particularly social media investigations—will play an even more significant role in wrongful death suits as well as New York Labor Law cases.

What is the Grieving Families Act?

The Grieving Families Act attempts to amend New York State’s Wrongful Death Law, which was passed in 1847 to protect families when their primary breadwinner was killed due to negligence of others. At present, the original law only allows for recovery of tangible economic damages, such as economic hardship caused by loss of parental guidance. It extends benefits only to spouses, next of kin, and blood relatives, and it gives plaintiffs up to two years to bring forth a wrongful death suit.

The proposed Bill, if approved, would allow plaintiffs to recover emotional damages (not just monetary ones) if a tortfeasor, or wrongdoer, is found liable for causing a death. It would enable plaintiffs to seek fair compensation for funeral and medical expenses, grief and anguish, loss of companionship, loss of nurture or guidance, and even diminishment of inheritance. It would permit recovery by “close family members” which could include a victim’s domestic partner, parents, grandparents, stepparents, and siblings. It would extend the time that plaintiffs could bring a wrongful death suit to three years and six months—an additional 18 months from what the original law allows.

The Grieving Families Act and Social Media Evidence

One of my first jobs in high school was working for a private investigator. I was tasked with following around workers comp claimants and filming them performing activities contrary to their claimed injuries. Now in the age of social media, such evidence is often found online, posted in various social media applications by the allegedly injured individuals, their friends and/or family members. Similarly, when people claim damages from the death of a loved one, one thing that defense counsel has at their disposal to disprove a plaintiff’s false claims of suffering is social media.

If the Grieving Families Act passes into law and extends benefit recovery permission to a much wider pool of people associated with the deceased, the degree to which social media will come into play as evidence in wrongful death litigation is mind-boggling. (Were they really so paralyzed by grief when they took those selfies dancing and partying on a cruise three days after their grandparent died as to justify recovery under the new expanded provisions?)

The question for defense attorneys is: how can you defensibly collect the information you need and use it in court?

The evidence is there; all you need is an eDiscovery expert to find it.

In a recent fatality case, my construction company client was sued for the negligent placement of a caution sign along a 20-mile stretch of freeway that they were refurbishing. What resulted in the case being settled rather than taken to court was a critical document in a single site photo taken two days before the incident. To find this needle in the haystack, we applied image recognition, audio transcription, and GPS mapping to thousands of photos and videos.

So much of the focus on discovery is on emails and user-generated office documents. Often, we make the mistake of overlooking site photographs and videos that are just as crucial. In this age of location detection, cell phone cameras, nanny cams, dashboard cams, heart rate and sleep monitoring watches, Alexa and others, the evidence you need to prove your case is out there. Whether you find it, collect it, and use it in a way that wins your case is up to you. eDiscovery experts are the ones who can help you make it count.

Want to learn more?

Whether the Grieving Families Act passes into law or not, my colleagues and I will be discussing other recent NY laws, cases and trends on an in-person panel on September 22, 2022, at the CLM Construction Conference in San Diego. Come join us to learn valuable tips on navigating through the cumbersome and confusing world of eDiscovery.

Not in San Diego next month? We’re a phone call or a contact form away. BIA has been helping insurance companies and their outside counsels fight insurance fraud for two decades. If the data is there, our eDiscovery and digital forensics experts will find it. We invite you to reach out today.

Ron Tienzo

Ron Tienzo

Ron Tienzo is BIA’s Director of Analytics and Advanced Technology. He is an expert consultant and thought leader with fourteen years of experience using advanced analytics to increase efficiency and lower costs in eDiscovery. Throughout his career, Tienzo has provided strategic discovery consulting to half of the Fortune 10 and one-third of the Fortune 100 at both the state and federal levels. A seasoned eDiscovery veteran, Ron is in high demand as an educator on Machine Learning and the intersection of technology and ethics.