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.

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Filed under Case Law, eDiscovery, Social Media Investigations

Using Search to Solve the Email Overload Problem

by Barry Murphy

There was an interesting article from The Information Governance Initiative about email overload and information governance. The quote that caught my eye is “in today’s fast-paced business world, the name of the game is productivity.”  X1 Search is a tool that many are using for just that – business productivity search. But, more than that, X1 Search can complement information governance efforts and help solve the email overload problem.

The IGI article states that “IG practitioners need to take a proactive approach in order to truly understand the realities of email overload and the entire scope of their organizations’ communications.”  I believe that IG is extremely important, especially in an information economy. The challenge is that it can be hard for IG to gain real traction unless companies have a senior executive with clout, power, and money who cares about it. Whether or not that executive exists at a given organization is hit or miss at best. IG programs will take time to gain traction and help employees be more productive.

But the email overload problem continues to exist. And, it is not simply about inbox management. Rather, it is across email that is on a server, or in an archive, or in a PST file. It is easy to forget that many organizations still have PST files on desktops or have moved them out to file servers. There is a customer using X1 to solve the “PSTs on file shares” problem.  What this customer does is use X1 Rapid Discovery to index the PSTs once, and then use X1 Search as the interface to that information. Users can quickly filter through years of emails to find exactly what they are looking for and to take action on it.

This customer uses X1 to complement IG processes and policies. With Rapid Discovery, those PSTs are now easily discoverable for litigation needs, instead of the previous need to forensically image desktops to get at the information. This creates a win-win and negates the need to do expensive migration of PSTs to an archive or to the cloud. At the same time, employees can deal with the email overload problem better because they are much faster at finding the right emails to do their jobs. It is an interesting use-case whereby the customer solved several problems at once and did so in a pragmatic way. The employee happiness with the X1 Search tool is the cherry on top of the sundae because it is a lasting benefit over the long-term.

IG projects can be painful and time-consuming and, if funded properly, often go nowhere. Fitting X1 into your IG program can save time, save money, and keep employees productive at the same time. For any organization seeking a quick IG win to prove the value IG brings to the company, X1 should be on the list.

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Filed under Best Practices, Business Productivity Search, Enterprise Search, Information Governance

X1’s Microsoft Enterprise Search Strategy: Better Than Microsoft’s?

By John Patzakis

microsoftIt seems obvious to say, but Microsoft is furthering its supremacy in the enterprise. While Microsoft has always dominated with is ubiquitous OS, it is dramatically consolidating its presence in terms of data sources. Outlook is only increasing in market share with corporate Gmail largely a flop and IBM’s Lotus Notes in full retreat. SharePoint continues to spread across enterprises large and small, dominating the ECM landscape. OneDrive for business, with its tight integration with the Windows 10 OS, essentially zero cost, and built-in active directory security, looks to eventually capture the enterprise file synch and sharing space. And Office 365 combines Exchange, SharePoint, and OneDrive into an integrated cloud offering (but not search – more on that in a bit). Finally, Skype for Business and OneNote round out the data sources that we believe will soon constitute up to 90 percent of enterprise data relevant for business productivity. So I would argue that we are entering a new era of Microsoft dominance.

And actually, this good news for X1 users, and we believe a key reason for the resurgent high growth we are seeing here at X1. Why? Each of those mentioned Microsoft data sources are either currently supported by X1 or will be supported within 12 months’ time, and X1 provides a much better user search experience than even Microsoft does. As an example, any X1 user will tell you X1 provides a much better search of Outlook and Exchange email than Outlook itself, and the simple viewing of this SharePoint video should convince anyone that our SharePoint search experience is far superior than that of native SharePoint. The same is true of local and network documents and very soon OneDrive (September 2015), and after that Skype for Business.

But even more important than having a better search experience for individual Microsoft data sources, what X1 uniquely provides is a popular and intuitive unified interface or a “single pane of glass” from which to search all of these various data sources. To be able to search your emails, your files, your SharePoint, your OneDrive, and all the other Microsoft data sources from that single interface is extremely compelling. In fact, Microsoft itself does not really have a single pane of glass capability. You cannot effectively search your SharePoint or OneDrive from Outlook, just as you cannot search your emails, Skypes or your local documents from SharePoint.

This new era of Microsoft data source dominance presents important considerations for organizations when selecting enterprise search solutions. Many enterprise search solutions are simply not architected to effectively support this new paradigm and thus are fighting against the Microsoft current, instead of providing a unified search platform, such as X1, that augments and strengthens a company’s Microsoft strategy. To summarize, here are five key reasons X1 excels in this new Microsoft era:

  1. X1 Starts with End User’s email and files. Most enterprise search solutions address enterprise data sources on Intranets, databases, and file shares, but ignore the end users email and local documents. This is missing about 80 percent of the end user’s key business data, while focusing on the data in the margins. To be successful in this new Microsoft era, a true productivity search solution should begin with the end users’ local emails, attachments and documents and extend to SharePoint, file shares and other key enterprise sources, all in a single pane of glass.
  2. No or Minimal Data Migration. Other enterprise search tools uniformly provide web portals for employees to search for their content. This is fine for some Intranet sites and other web-based data, but is not where you want search your day-to-day emails and working documents. And when it comes to SharePoint, any suggestion that such data should be migrated out of SharePoint just so another enterprise search vendor can search it on a similar website is a non-starter. For a successful Microsoft strategy, the indexes must be on a local, physical or virtual desktop (or laptop), indexed in place, or federate to the built-in native FAST indexes. Data migration out of Microsoft data sources no longer make any sense and should be a thing of the past.
  3. X1 Supports Virtualization and Cloud. The next generation enterprise is virtual, whether cloud or on premise. With Microsoft Azure, Office 365 and Microsoft data sources being able to be deployed in these and on-premise virtual environments, enterprise search, including desktop search (VDI and DaaS) platforms need to do so as well. This is a significant challenge for most enterprise search tools that are either hardware appliances or require intricate and labor intensive installation onto physical hardware.
  4. X1 provides a better search experience than Microsoft does. “Good enough” is not good enough when it comes to search. It does not make sense to invest in an enterprise search solution for business productivity search, unless there is a significant improvement in the end-users search experience for emails, files and SharePoint data. The main reason enterprise search initiatives fail is because the stakeholders do not appreciate that business productivity search is all about end-user experience. Without the end-users embracing your search platform in practice, as X1 users do, the project will fail, no matter how cool the analytics and advanced algorithms sound in theory.
  5. Unified Single Pane of Glass. Providing one single pane of glass to a business worker’s most critical information assets is key. Requiring end-users to search Outlook for email in one interface, then log into another to search SharePoint, and then another to search for document and OneDrive is a non-starter. A single interface to search for information, no matter where it lives fits the workflow that business workers require.

These are all very important factors for buyers of enterprise search solutions to consider in the new Microsoft era, and we of course believe X1 is uniquely up to the task.

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Filed under Business Productivity Search, Cloud Data, Enterprise Search, Virtualized Environment

Judges Believe Social Media will Have Biggest Effect on eDiscovery Over the Next Two Years

The good folks at Exterro recently released a very interesting report titled “Federal Judges Survey, eDiscovery Best Practices and Trends.”  The title includes a link to download the report, which I highly recommend reading as it is good to know what the judges who rule on eDiscovery all the time are thinking.  Overall, the report calls for some necessary disruptive change in the practice of eDiscovery in order to demonstrate competency.  There are some excellent tips in the report on how eDiscovery professionals can improve and what kinds of trends we should be on the lookout for.

One finding stood out to me in particular – the Judges surveyed felt that social media would be the technology trend with the biggest effect on eDiscovery over the next two years.

Exterro Survey

As the report states, “Attorneys must be aware that all emerging technology platforms are just like email; if they hold relevant evidence you are accountable for preserving the data.”  At X1, we’ve known this for quite some time.  We’ve blogged about cases where the old way of doing social discovery – print screen – has been shown to lack authenticity standards and not meet the duty of competency that lawyers must meet.  To see the Judges recognize this as a critical trend rather than just a niche corner of the market validates what we have known for years.

It is no coincidence that X1’s Social Discovery product continues its rapid upward trajectory.  There is simply no other product on the market that offers a true investigative platform for this critical new data type.  Such a social media investigative platform will include:

  • Tight API connections to the major social media publishers like Facebook, LinkedIn, Twitter, and Instagram. The API connection allows for the capture of unique metadata that each publisher adds to its data.
  • A web crawler and capture capability that creates a copy of the page to be stored for processing into a preservation repository.
  • The ability to keep data forensically sound. This requires calculating MD5 hash values of individual items upon capture and maintaining those values through export. The platform must keeps logs and reports of all actions on data. It also must be able to use metadata to establish chain of custody and authentication.

The challenge with social media – unlike email – is that much of the data resides outside the walls of an organization.  Collection of social media becomes a challenge. Companies cannot simply call Facebook or Twitter and request all of the information for various custodians.  It is possible to take screenshots of various web pages or social media sites, but as case law points out, screenshots are not necessarily admissible as evidence.  Plus, screenshots take a technical toll on eDiscovery – they can be difficult to index and may require OCR, which still may not be able to pull text out of the image.  That is where an investigative platform like X1 Social Discovery is so important to a competent eDiscovery practice.

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Filed under Best Practices, Social Media Investigations