Category Archives: Best Practices

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

 

 

 

 

 

 

 

 

 

 

 

 

 

(click to enlarge)

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.

 

Leave a comment

January 27, 2016 · 6:12 PM

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.

Leave a comment

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

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.

2 Comments

Filed under Best Practices, Social Media Investigations