Search Reveals Hundreds of Improper Juror Social Media Posts Per Day

By John Patzakis

The Federal Judicial Center (“FJC”) recently published a report surveying 952 federal district court judges to identify the scope of jurors’ improper use of social media during trial and how the courts are addressing the problem. The FJC’s report, Jurors’ Use of Media During Trials and Deliberations, reflects that despite various prevention efforts, jurors continue to use Facebook, Twitter, Google and other sites in several, and that the courts continue to struggle to detect such usage. According to the survey results, 30 judges identified incidents of improper juror social media usage,

Such misconduct can easily result in a mistrial or even reversal of judgement. In State v. Smith, Sept. 10, 2013, the Tennessee Supreme court vacated a first degree murder conviction on the sole grounds that one of the jurors communicated with a prosecution witness during trial via Facebook. The court lamented that Internet and social media “has exponentially increased the risk….of extra-judicial communications between jurors and third parties.” This decision is but one example of this common occurrence of juror misconduct through social media use, requiring attorneys and jury consultants to engage in on-going passive monitoring of publicly available social media information.

In fact we recently did our own search of the Twittersphere with X1 Social Discovery, and uncovered several hundred improper Juror tweets in a single day (1/13/2016). Here is a small sampling:

juror tweets

 

 

 

 

 

 

 

 

 

 

 

 

 

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It is thus no surprise lawyers are increasingly using Twitter to investigate and monitor potential and impaneled jurors. However, this type of monitoring activity can lead to serious attorney ethics violations if direct or even indirect communications are sent to the juror as a result of such monitoring activities. (See e.g. New York County Law Association Formal Opinion No. 743, May 18, 2011). Proxies hired by attorneys, including eDiscovery service providers, investigators and jury consultants are subject to these restrictions, which can also apply to social media communications with witnesses or opposing parties who are represented by counsel.

For this reason, X1 Social Discovery features a specialized “public follow” feature that enables access to all the past Tweets of a specified user (up to 3200 past tweets) and any new Tweets in real-time without generating a formal “follow” request with the resulting problematic communication.. These legal ethics rules concerning indirect social media communications underscores the importance of employing best practices technology to search and collect social media evidence for investigative and eDiscovery purposes.

Collecting evidence in a manner that prevents, or at minimum, does not require that attorneys and their proxies directly or indirectly communicate with the subjects from whom they are collecting social media evidence is a core requirement for solutions that truly address investigative and eDiscovery requirements for social media. In addition to preserving and authenticating social media evidence in a proper manner, X1 Social Discovery provides fast and comprehensive searching of the data in a manner unmatched by any other technology.

It can even potentially prevent a possible mistrial through early detection of a juror’s improper Tweets or Facebook postings.

UPDATED:  Attorney Ignatius Grande, co-chair of the New York State Bar Committee on Social Media, contacted me in response to this post, to point to the Committee’s recently published Social Media Jury Instruction Report. The report describes the scope and challenges from juror social media use during voir dire and trial, as well as proposed amendments to standard jury instructions address such juror misconduct.

 

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January 27, 2016 · 6:12 PM

Terrorist’s Social Media Postings Overlooked: Greater Diligence is Necessary in the Future

by John Patzakis

One of the shooters in the San Bernardino massacre, Tashfeen Malik, made several posts to her Facebook account in 2012 and 2014 that strongly suggested that she held radical Islamic views, according to a New York Times report. Malik, 29, made the postings before she entered the United States on a K-1 fiancée visa in July 2014, the Times said, citing top federal law enforcement officials.

According law enforcement sources, one of the officials said Malik “expressed her desire” in one of the posts to become an Islamic militant in her own right. U.S. officials have said their investigation has yet to turn up evidence that foreign militants directed Farook or Malik when they stormed a holiday gathering of Farook’s co-workers and opened fire with assault-style rifles. The couple fatally shot 14 people and wounded more than 20 in a rampage the Federal Bureau of Investigation said it was treating as an act of terrorism inspired by Islamist militants.

Malik’s Facebook messages indicate that U.S. law enforcement and intelligence officials missed warnings on social media that she was a potential threat before she applied for her U.S. visa.  While there currently is no explicit order banning visa investigators from trawling applicants’ social media accounts, some agencies have been wary about doing so, the official said.

And the perils of overlooking social media evidence apply to all forms of investigations, whether law enforcement or civil legal matters. As noted by attorney Jennifer Ellis in her presentation at the recent May 2015 national American Bar Association conference, “failure to understand how social media can impact clients’ cases could lead to serious damage to a case which might result in a malpractice complaint.” And as noted by a Maryland Appellate court: “It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.” Griffin v. Maryland, Case No. 1132, Court of Special Appeals Maryland, May 27, 2010, slip op. at 14

However, the NY Times report cites mistaken law enforcement officials who claim it “is impossible to . . . scour the social media accounts” of all potential immigrants and visa applicants. Nothing could be further from the truth.

When rudimentary tools such as web browsers and print screen are used, social media investigations are indeed burdensome and costly. A single publically available Facebook account may take hours to review manually, and may require over 100 screen captures to collect with manual processes. However, with the right software, such investigations can be foundation of a very scalable, efficient and highly accurate process. Instead of requiring hours to manually review and collect that public Facebook account, the right specially designed software, like X1 Social Discovery, can collect all the data in minutes in an instantly searchable and reviewable format.

So like any form of digital investigation, feasibility (as well as professional competence) often depends on utilizing the right technology for the job.  As agencies and companies work social discovery and investigations into standard operating procedures for common processes (visa applications, insurance claims investigations, etc), it is possible that fewer warning signs will be missed.

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Print Screen for Social Media Evidence: Not Defensible and Also Very Expensive

By John Patzakis

As we often note on this blog, courts continue to routinely find that the testimony of an individual who merely printed a copy of a social media webpage is insufficient to authenticate social media evidence. Notable recent cases with such rulings include 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) (memorandum by an unnamed person about representations others made on Facebook is at least double hearsay” and not authenticated), and Moroccanoil vs. Marc Anthony Cosmetics, 57 F.Supp.3d 1203 (2014) (Facebook screenshots inadmissible in a trademark infringement without supporting circumstantial information).

These rulings underscore why best practice technology is essential for gathering social media and other Internet evidence. But while many practitioners understand this in terms of defensibility, many operate under the mistaken assumption that manual print screen efforts are a cost-saving shortcut. Nothing could be further from the truth. Stallings v. City of Johnston, 2014 WL 2061669 (S.D. Ill. May 19, 2014), is very instructive as it clearly illustrates that printing Facebook pages for production in eDiscovery is a really bad (and expensive) idea.  In this case, plaintiff Jayne Stallings brought suit for wrongful employment termination against the City of Johnston, her former employer. And it seems that Stallings, like millions of others, was an avid and highly opinionated Facebook poster.

So to respond to discovery requests, Plaintiff’s counsel and a paralegal spent a full week printing out the contents of Plaintiff’s Facebook account — which amounted to over 500 printed screen captures — manually rearranging them, and then redacting the pages. Plaintiff counsel also claimed that she could not provide the relevant Facebook information on a disk, and thus resorted to inefficient paper production – an obviously costly exercise. A week of paralegal and lawyer time could easily run $25,000 and no client should pay anywhere near that amount for a task that, with the right technology, requires minutes instead of days to perform.

Print screen as a social media evidence collection method only leads to higher costs for many reasons, namely because the resulting output is a truncated, unsearchable, flat image that fails to retain the all-important metadata. As a result, a substantial amount of secondary processing must be done to upload the social media images into a standard attorney review platform. The images must be run through OCR, the various requisite metadata fields must be manually entered, and the truncated screen shots reassembled into context so they appear and read as they did in their original state. All this will typically cost thousands of dollars in additional processing fees.

Additionally, when an examiner merely relies on print screen, the scope and thoroughness of the collected social media and Internet evidence is severely limited. This often results in key evidence being overlooked as well as impacting its evidentiary integrity. Employing more automated means, such as X1 Social Discovery, enables the examiner to quickly collect entire web pages and publically available social media accounts, which can be hundreds of pages long. This comprehensive and thorough collection allows the examiner to collect far more potential evidence, preserving all relevant metadata, and having that evidence be immediately searchable and reviewable in a highly effective integrated review platform.

Further, the examiner can build a much stronger case for authentication by constructing timelines, drawing connections between witnesses and their various posts, collecting more corroborating metadata, and a litany of other information to build a compelling circumstantial case to authenticate the social media or web page evidence in question.

And of course another key benefit 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 collected social media evidence. 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.

So while it can seem counterintuitive as sometimes there is a tradeoff when it comes to legal technology between best practices and costs, manual print screen efforts for social media are not only very costly, they subject clients to evidentiary challenges that could place an entire case in peril. But you can have the best of all worlds with the scalability, cost-saving and defensibility brought by X1 Social Discovery.

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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.”

And:

“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.

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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.

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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

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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.

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