New FRCP Rule 37(e) Calls Out Importance of Social Media Evidence

By John Patzakis

A new version of Federal Rule of Civil Procedure 37(e) FRCP bookgoes into effect December 1, 2015, barring an unexpected act of Congress to amend or rescind the changes. Proposed rule 37(e), features a new title: “Failure to Preserve Electronically Stored Information,” and replaces the current subpart in its entirety, providing a uniform standard to resolve a split in case law among different Judicial circuits concerning serious ESI spoliation sanctions. Rule 37(e) will be the only Federal civil rule section addressing the duty to preserve ESI and thus serves as key guidance governing eDiscovery collection and preservation efforts.

Proposed Rule 37(e) is accompanied by official Committee Advisory notes. Judges and counsel refer to these Advisory notes to provide guidance and insight concerning the intent of the laws and how they should be applied. The Advisory notes are published alongside the statute and are in fact widely seen as an extension of the FRCP. The Advisory notes for new proposed Rule 37(e) include the following key section:

Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms. It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues (emphasis added).

This reference to social media is particularly notable as it is included in very important guidance concerning overall ESI preservation requirements.  The implication of the new law is clear:  social evidence is given at least equal weight and import as other forms of ESI such as email and documents. As an aside, the Advisory notes to the 2006 Federal Rules Amendments, specifically for Rule 37(f)  state: “When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a ‘litigation hold.’”

Due in large part as a result of this mention, legal holds quickly became a core eDiscovery requirement, with an entire sub-industry spawned.  So there is no question that the Advisory notes are highly influential.

It is notable that social media evidence is already a core component of eDiscovery evidence collection efforts by most lawyers and practitioners.  Recently, the global law firm Gibson Dunn released their influential 2015 Mid-Year eDiscovery and Information Law Update. In a section dedicated to social media, the Gibson Dunn update reports that “the use of social media continues to proliferate in business and social contexts, and that its importance is increasing in litigation, the number of cases focusing on the discovery of social media continued to skyrocket in the first half of 2015.”

And as succinctly noted by The Florida Bar Association in its publication, Florida Law Journal, “Social Media Evidence: What You Can’t use Won’t Help You” (2014) Volume 88, No. 1:

“Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations– can immeasurably help their clients resolve disputes. If not properly researched, preserved, and authenticated, the best social media evidence is worthless.”


“Social networking sites have grown from a few thousand users to more than a billion. These sites have become a preferred form of electronic communication, surpassing email in 2009. As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state’s population. Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.

And we are of course seeing this explosive trend in the adoption of X1 Social Discovery ahead of new FRCP Rule 37(e). X1 Social Discovery is the undisputed leader in its field for the preservation and analysis of social media and other internet evidence. If you are not one of the several thousand eDiscovery, legal, and digital investigation professionals who have enthusiastically incorporated X1 Social Discovery into your standard preservation protocols, new FRCP 37(e) should be your final call to action.

Leave a comment

Filed under Case Law, eDiscovery, Social Media Investigations

A Series of Firsts: How X1 Sets the Standard for the New Enterprise Search Market

by Barry Murphy

The new world of IT demands that enterprise software support varying infrastructures – traditional managed data centers, the cloud, hybrid and virtual environments.  As a result, old-school approaches that once seemed logical no longer work in today’s reality.  For example, tightly-coupled search appliances that marry hardware and software together no longer meet the requirements of enterprises that need to make distributed workers more productive no matter what kind of device they are on.  It’s a new world for enterprise search and traditional solutions will have a very hard time adapting and scaling.

X1 is ready for the IT reality of always-on, virtual, cloud, and hybrid environments and business mobility.  This is evidenced by two “firsts” that X1 is proud to announce.  First, X1 is the first search application with an app publicly available in an Enterprise Mobility Management (EMM) app store.  X1 Search Mobile is available in the AirWatch marketplace.  Given the rapid move to mobile devices for work, this is no small news.  Google just announced on Friday that searching the web is now predominantly done from mobile phones.

Click to enlarge image

Click to enlarge image

It’s clear, then, that enterprise search from the mobile device is now an essential requirement for business professionals.  The mobile search app is important, but what X1 is building out is much more than that.  In order to effectively deliver enterprise search from the mobile device requires having the back-end infrastructure to support full enterprise search in virtual environments.  It also requires supporting the next-generation desktop (VDI or DaaS) where the users live. X1 has uniquely mastered such back-end infrastructure with the only desktop search (VDI or otherwise) and enterprise search solution that are VMware Ready certified.

The second “first” that X1 is proud of is the listing of X1 Rapid Discovery in the Amazon AWS Marketplace.  Again, this is no small feat – this is the first enterprise-grade search and eDiscovery application to be available in the AWS Marketplace.

AWS marketplace

Click to enlarge image

Organizations storing content in AWS can now get full-featured enterprise search and eDiscovery deployed right next to their content.  And, if these organizations store other content locally, they can deploy Rapid Discovery in their own data center as well and have a single-pane-of-glass across all information no matter where it lives.

X1 will continue to provide solutions that work in the infrastructures that organizations utilize today.  The traditional approach to search will not work, but with X1, companies will have the flexibility to deploy into any environment and give users a powerful search experience on any device.  That is a powerful productivity tool – and businesses require worker productivity the same way humans require oxygen.  It is a new enterprise search market out there and X1 is uniquely positioned to lead the charge.

1 Comment

Filed under Cloud Data, eDiscovery, Enterprise eDiscovery, Hybrid Search, Information Management

X1 Wins Key Honor at VMworld: 3rd Major Award for 2015

By John Patzakis and Barry Murphy

X1 continues to garner widespread acclaim in 2015 for providing enterprise end-users with the fastest, easiest-to-use, cloud-enabled enterprise search software from any device through X1 Search Virtual. The experts in this domain recognize that X1 is providing a game-changing capability in this new era of enterprise virtualization and mobility, while traditional enterprise search tools are simply not built to support the new paradigm.

Earlier this month, a panel of judges comprised of recognized experts and editors chosen by TechTarget’, awarded X1 “Best of VMworld 2015Best of VMworld_500Awards Finalist in the Desktop Virtualization and End-User Computing Category. The judges evaluated 153 nominated products on display at VMworld 2015, and based the winners on innovation, value, performance, reliability, and ease of use.

X1 SearchTM Mobile brings X1’s award-winning user interface for desktop search to the mobile device, providing lightning-fast and secure search of email and files while on the go. This means users will no longer settle for the limited, slow and inconsistent “Exchange-only” searches of current smartphones. X1 Search Mobile enables full email (including archived emails) and desktop search from the mobile device, keeping workers productive no matter where they are. Notably, X1 was the only software provider at VMworld 2015 offering enterprise search for virtual environments with real time access from any device. High level discussions with Gartner and other key industry experts and executives confirm that X1 is far ahead of the pack in delivering this unique and disruptive capability.

How disruptive? According to Jack Madden, noted analyst and blogger on enterprise mobility and end-user computing, in a live video interview, “You know what else I like about [X1 Search Mobile] is it can …take the place of enterprise file synch and share products, because that is all your files in the background, and not to mention all your inbox (emails and attachments) and they’re right there, mobile enabled, with a policy around them. There is a lot there.”

This capability is made possible by X1’s virtual “always-on” index enabling access to your files from any device, which is the main use case for Box, Dropbox, and other EFSS tools. But with X1, you also access your emails from the same interface, with built in X1 search and an overall better user experience. And best of, this can all be accomplished through an enterprise’s existing on-premise virtual or private cloud infrastructure.

The 2015 recognition began in April, when Gartner named X1 a Cool Vendor in EndPoint Computing. According to Gartner’s report, “X1 can improve end-user experience on hosted virtual desktops by maintaining Windows and Outlook searches, which are often lost in the transition away from traditional PCs.” Platforms like VDI and DaaS hold great promise, but the user experience with VDI is often sub-optimal, thereby hindering widespread adoption. X1’s recognition by Gartner as a Cool Vendor validates our innovation in cloud and virtual environments, as well as our commitment to provide a stellar end-user experience.

And for the third award, PC Magazine published a very strong product review for X1 Search (version 8).  X1 won the desktop search category with the prestigious “PC Mag Editor’s Choice” designation. Some key takeaway quotes:

  • Basic setup for the program couldn’t be simpler
  • The program’s search capability is impressive, both for its ease of use and its sophisticated features
  • If you can take advantage of X1 Search’s ability to extend its reach to SharePoint or cloud-based email and Box, or make use of its ability to build much more sophisticated search phrases than Lookeen can handle, X1 Search is the obvious choice.

To get three major awards in one year is obviously gratifying and validates that the approach to support enterprise virtualization and mobility through a stellar search experience is a winning strategy to support our customers as they rapidly embrace the next generation desktop. We look forward to continuing to deliver an unmatched search experience across data anywhere, on any device.

Leave a comment

Filed under Enterprise Search, Mobile Search

Mobile Productivity Now a Reality Thanks to X1 Search Mobile

X1 is exhibiting at VMworld this week and it is impossible to avoid the theme of mobility.  There is a whole track at the conference devoted to “the mobile enterprise.”  Given that the workforce is mobile more than ever and using multiple devices in any location, workers need access to applications and information on-the-go.  It is not surprising, therefore, that folks coming by the X1 booth are intrigued by X1 SearchTM Mobile.  IDC estimates that, by 2020, mobile workers will make up 72.3% of the workforce – the need for mobile productivity is and will be very real.


X1 SearchTM Mobile enables an instantaneous and secure search of millions of documents and years of email from a smartphone, a game-changing capability for today’s mobile workforce. It brings X1’s award-winning user interface to the mobile device, providing lightning-fast and precise search of email and files while on the go. No longer will users need to settle for the limited, slow and inconsistent “Exchange-only” searches of current smartphones. X1 Search Mobile enables full email (including archived emails and PSTs) and desktop search from the mobile device, keeping workers productive no matter where they are.

In today’s “always on” environment, X1 Search Mobile allows users to quickly and effortlessly find and take action on the information they are looking for regardless of where it is and when they might be looking for it.  Imagine being at the airport, with your laptop packed away and a client calls with questions on a proposal you sent.  You don’t have time to pull out your laptop, fire it up, and pull up the proposal.  With X1 Search Mobile, though, you can quickly find that proposal right your phone, pull it up within seconds, and answer the important questions your client has.

The first question that many have when it comes to mobile information access is, “what about security?  Will this be an access control nightmare?”  With X1 Search Mobile, the answer is easy – this is a search application built for the enterprise.  It integrates with leading Enterprise Mobile Management (EMM) tools such as AirWatch and Good Technologies so that security is built in from the ground up.  In fact, by using the EMM security layer, X1 Search Mobile can help organizations enforce BYOD policies.  For example, if an organization wants users to only do corporate email in the email app of the EMM provider, X1 Search Mobile can enable a post-search action that launches the EMM email app versus the native email client of the phone.

With X1 Search Mobile, true mobile productivity is possible.  Workers can have search precision light-years beyond what current smartphones offer natively, with a single-pane-of-glass view across email, desktop files, SharePoint and other enterprise content on the mobile device.  Within this user interface, workers will experience fast-as-you-type search, full-fidelity preview of attachments with hit highlighting and infinite scrolling of search results (no need to “continue search on server”).

This approach to mobile search is ground-breaking and fills a huge productivity void in today’s mobile enterprise.  X1 Search Mobile provides an intuitive user interface to email that goes well beyond the native search of the mobile device while also providing access to desktop files, SharePoint, and other critical sources of content. X1 enables true mobile productivity.  While other search vendors offer a vague mobile SDK so that consulting companies can build search apps, X1 offers the real thing – a mobile search application that gives users access to their critical information and enables mobile productivity.  Learn more and see the product in action here.

1 Comment

Filed under Mobile Search

Gibson Dunn Report: Number of Cases Involving Social Media Evidence “Skyrocket”

By John Patzakis

Global law firm Gibson Dunn has released their esteemed 2015 Mid-Year eDiscovery and Information Law Update.skyrocket In a section dedicated to social media, the Gibson Dunn update reports that “the use of social media continues to proliferate in business and social contexts, and that its importance is increasing in litigation, the number of cases focusing on the discovery of social media continued to skyrocket in the first half of 2015.”

The eDiscovery update addresses key themes and several cases involving key legal issues related to social media evidence, which were previously addressed on this blog. Two key highlights cite cases affirming that mere screenshot printouts of social media evidence are not defensible and clarify overall authentication requirements in order to admit social media evidence in court.

As noted by the report “in the first half of 2015, courts continued to find that the testimony of the individual who printed a copy of a social media webpage, or prepared a memorandum summarizing information obtained from the social media account, is insufficient to authenticate social media evidence.” The report cites Linscheid v. Natus Medical Inc., 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015) (finding LinkedIn profile page not authenticated by declaration from individual who printed the page from the Internet); Monet v. Bank of America, N.A., 2015 WL 1775219, at *8 (Cal Ct. App. Apr. 16, 2015) (finding that a “memorandum by an unnamed person about representations others made on Facebook is at least double hearsay” and not authenticated).

The Report also cited “a major shift” in case law concerning the authentication of social media evidence. The Court of Appeals of Maryland determined that “in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.”  Sublet v. State, 113 A.3d 695, 698, 718, 722 (Md. 2015) (citing U.S. v. Vayner, 769 F.3d 125 (2d Cir. 2014)). Previously in Maryland, social media evidence was admissible only if the judge was “convince[d] . . . that the social media post was not falsified or created by another user.”  Griffin v. State, 19 A.3d 415 (Md. 2011).

Under Sublet, the preliminary determination of authentication is made by the trial judge and is a “context–specific determination” based on proof that “may be direct or circumstantial.” Id. at 715 (citing Vayner). The court noted that “[t]he standard articulated in Vayner … is utilized by other federal and State courts addressing authenticity of social media communications and postings.”

These cases cited by Gibson Dunn illustrate why best practices software is needed to properly collect and preserve social media evidence. Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. In many cases, such as in the Vayner case where incriminating social media evidence is at issue, that option is not available. In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the website documents are what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).

One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” in order to present the best case possible for the authenticity of social media evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts and general web pages in a thorough manner with best-practices technology specifically designed for litigation purposes.  For instance, there are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries, or a combination of them contrasted with other entries, can provide unique circumstantial evidence that can establish foundational proof of authorship.

Leave a comment

Filed under Case Law, eDiscovery, Social Media Investigations