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The Benghazi ESI Scandal

Last week, the United States Senate Intelligence Committee issued a bipartisan report finding that the deadly assault on the American diplomatic compound in Benghazi, Libya, which killed US Ambassador Chris Stevens and 3 other Americans, could have been prevented.

Bengazi

The account spreads blame among the State Department, the military and U.S. intelligence for missing what now seem like obvious warning signs in the weeks before the September 11, 2012, attack, including multiple clues and outright threats that appeared on social media — key evidentiary source of Electronically Stored Information (ESI) as defined by the Federal Rules of Civil Procedure.

And therein lies what could be the real scandal of the Benghazi affair – The failure of the US Intelligence Committee to monitor and investigate available social media evidence leading up to the attack in that volatile and dangerous part of the world.  The Senate report notes that “[a]lthough the Intelligence Community (IC) relied heavily on open source press reports in the immediate aftermath of the attacks, the IC conducted little analysis of open source extremist-affiliated social media prior to and immediately after the attacks.” And that there were “reports from the IC indicating that more in-depth intelligence exploitation of social media in the Benghazi area, including web postings by Libyan nationals employed at the Temporary Mission Facility, could have flagged potential security threats to the Mission facility or important information about the employees prior to the September 11, 2012, attacks.”

One of the missed clues identified by the Senate report, which includes 14 independent references to social media evidence, involved a prior May 22, 2012, attack on the Benghazi-based International Committee of the Red Cross (ICRC) building by militants with Rocket Propelled Grenades (RPGs). On May 28, 2012, a previously unknown organization, The Omar Abdurrahman Group, took to social media to claim responsibility for the ICRC attack and issued a direct threat against the United States. It is believed by many intelligence experts, and implied in the Senate report, that the Omar Abdurrahman group was responsible for the September 11, 2012, attacks on the American diplomatic compound.

The Senate report includes a key recommendation that the Intelligence Community “must place a greater emphasis on collecting intelligence and open-source information, including extremist-affiliated social media, to improve its ability to provide tactical warnings…” And separately, the Senate Intelligence Committee recommends that the “IC should expand its capabilities to conduct analysis of open source information including extremist-affiliated social media particularly in areas where it is hard to develop human intelligence or there has been recent political upheaval. Analysis of extremist-affiliated social media should be more clearly integrated into analytic products, when appropriate.”

Ironically, all these pieces of evidence and clues could have been very effectively gathered with specially designed investigation software that runs $945 a seat.

And speaking of written reports issued last week by prominent organizations that address the compelling trend of social media evidence, Gibson Dunn released their 2013 Year-End Electronic Discovery and Information Law Update. In a section dedicated to social media, the Gibson Dunn Update notes that “the number of cases involving social media evidence continues to skyrocket,” and that “Commentators and courts alike have noted that the use of social media evidence has become commonplace across all types of litigation.” The Update covers several cases, many of which have been addressed on this blog, involving key legal issues related to social media. It’s a good read, and is not unlike the Senate Intelligence Committee’s Benghazi report, in that both underscore the critical importance of social media evidence, for both reactive and proactive investigations of many stripes.

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Facebook Spoliation Levels the eDiscovery Playing Field

When an individual or small company plaintiff litigates against deep-pocketed defendants, the eDiscovery burden and risk largely falls on the latter. In employment litigation for instance, the employer must collect, review and produce up to hundreds of thousands of emails and electronic documents, with the plaintiff-employee usually not required to do much at all. The reason for this is obvious, as typically the employer possesses nearly all of the relevant documents. Many individual Plaintiffs achieve knock-out punches by establishing spoliation by a corporate adversary, with Zubulake vs. UBS Warburg being just one of many examples.

However, as Federal District Court Judge Craig B. Shaffer noted last month in his Federal Courts Law Review article, social media can turn the tables. In his co-authored piece “Looking Past the Debate: Proposed Revisions to the Federal Rules of Civil Procedure,” 7 Fed. Cts. L. Rev. 178 (September, 2013), Judge Shaffer, as part of a broader analysis of the proposed amendments to the FRCP that affect eDiscovery, calls out the important new strategic dynamics of social media evidence:

“In the past, particularly in an asymmetrical case (such as a single employee discrimination action brought under Title VII), plaintiff’s counsel might have paid only fleeting attention to his or her client’s preservation obligation since it was presumed that the defendant employer had possession, custody or control of all the relevant ESI. That confidence may be misplaced, however, with the advent of social media. As one court recently observed, there is ‘no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.’ A party is presumed to have control over their social networking accounts and relevant information on those sites is discoverable…Since the plaintiff controls when litigation commences, as well as the nature and scope of any claims asserted, a plaintiff’s attorney who does not take early and affirmative steps to preserve social media content risks spoliation sanctions.”

The most notable case involving social media spoliation so far this year is Gatto v. United Air Lines, Inc., 2013 WL 1285285, (D.N.J. Mar. 25, 2013). In Gatto, a JetBlue employee filed a personal injury suit, alleging United’s negligence caused a set of fueler stairs to crash into him. Gatto claimed that his injuries rendered him permanently disabled and that his disability limited his physical and social activities. United sought discovery of Gatto’s social media accounts, but Gatto refused to comply and deactivated his account. The court ultimately awarded United an adverse inference instruction based on Gatto’s failure to preserve his Facebook account and his intentional destruction of evidence. (See also, Cajamarca v. Regal Entertainment Group, 2012 WL 3782437, (E.D.N.Y. Aug. 31, 2012) (plaintiff’s counsel sanctioned for failing to advise client to preserve Facebook communications); Katiroll Co., Inc. v. Kati Roll and Platters, Inc., 2011 WL 3583408, (D.N.J. Aug. 3, 2011) (court finds party failed to preserve trademark-infringing Facebook profile and ordered remediation to original state to enable production).

And then there is of course Lester v. Allied Concrete Company, where the Plaintiff’s attorney blithely instructed his client to rid his Facebook page of damaging evidence, resulting in what many attorneys believe is the most severe eDiscovery court sanction imposed upon a lawyer. However, for every situation like the Lester case where relevant social media is brought to the forefront, there are presumably many others where important social media evidence is overlooked by attorneys and their service providers who do not include social media as part of their standard eDiscovery preservation checklist. As it is now established that social media is highly relevant as evidence, it is important that attorneys, paralegals, eDiscovery consultants and investigators proactively seek out such evidence from their clients, witnesses and opponents alike, and include its investigation in their standard processes and checklists. Many courts and legal experts have now weighed in to establish that professional standards of care require it.

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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here >

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Q&A With DLA Piper Social Media Practice Group Co-Chair Joshua Briones, and Fellow Group-Member Ana Tagvoryan

Ana Tagvoryan

A. Tagvoryan

J. Briones

J. Briones

Today we are pleased to welcome Joshua Briones and Ana Tagvoryan for a special Q&A session about social media evidence discovery.  Joshua is a partner at DLA Piper and co-chair of the firm’s Social Media Practice Group.  Ana is also at DLA Piper and a member of the firm’s Social Media Practice Group.  Joshua and Ana advise clients regarding compliance with state and federal laws, which govern the use and disclosure of consumer information, and associated FTC regulations, privacy, the cloud, social networks, blogs, and other user-generated web content and on privacy and Internet-related class actions. Each is a co-author of the legal practice guide, Social Media as Evidence: Cases, Practice Pointers and Techniques, published by the American Bar Association.  It is a highly practical book that we highly recommend, available for purchase online from the ABA here.

Q: Your book emphasizes that every litigator needs to understand and utilize social media evidence.  What do you say to the “old school” litigator who is more skeptical?

A:

Joshua:  Social media has become an evidentiary gold mine for impeaching witnesses and undermining a party’s litigation position. Eighty percent of Americans who are online now regularly use some form of social media. The proverbial “smoking gun” email has now given way to the smoking gun social media post. But there is a misperception that information on social media sites is private or limited to “friends” of the post. In reality, much of the information on social media sites is not private, and it can often be accessed or seen by complete strangers. For litigators, there is little question that litigation now regularly involves social media data as evidence, but it is essential that your litigation support staff or hired service provider has the requisite expertise and the right tools to capture and preserve this information.

Ana:  In addition, if it hasn’t happened already, it is only a matter of time before an attorney faces a malpractice claim for failing to review publicly available social media data.  In certain cases, social media data that is publicly available on a party or key witness could hurt or strengthen a party’s position and affect the outcome.  It is now a matter of basic due diligence for attorneys to review such data at the outset of a case and to be aware of it.

Q: You mentioned impeaching witnesses — many litigators assume that generally means younger folks and individual Plaintiffs, but you make some very compelling points about expert witnesses.

A:

Joshua:  Yes. Just about every expert witness these days has a blog, contributes to other blogs or regularly uses Twitter or Facebook.  Sometimes they do all three, as many experts these days seek to build an online brand as “knowledge leaders.” You can also find online videos of their presentations or lectures. It’s good for litigators to consider thoroughly researching these sources regarding opposing experts as well as for performing due diligence on their own expert witnesses. Additionally, lawyers may want to include in the expert’s engagement letter that they will not discuss the case on social media or blog sites until the case is completely over, including appeals, and, further, that anything discussed with the client or its counsel during the case that was not disclosed at trial is confidential and should never be disclosed.

Q: What are some of the finer points of social media evidence that corporate counsel should be aware of?

A:

Ana:  Obviously a company’s official social media account is going to be discoverable in a litigation matter, but in many cases an employee’s personal social media account may be discoverable as well, depending on company policies and procedures. For instance, if a company’s IT policy states that the business owns everything created, stored, sent or received on company equipment, then a court might find that the company owns – and therefore controls – any social media created by an employee at work or on a company computer, and which is germane to the issues in the litigation. Companies should therefore closely review their written IT policies which may have been written several years ago and thus did not take social media into account. All document retention policies and litigation hold procedures should also take social media data into account.

Q: For a party’s social media data that is behind privacy settings and available to “friends only” what is the current trend with courts treating this data as discoverable?

A:

Joshua:  While not allowing unfettered fishing expeditions into opponents’ social media accounts, courts are compelling production of non-public social media evidence where there is a showing of potential relevance. So while there is a relevance threshold as with all forms of discovery, courts are not recognizing any right to privacy when it comes to non-public social media content. In fact, judges in key decisions have noted that the “very nature and purpose” of social media sites is to share personal information with others in a very public form.

Ana:  Yes, all this is true even though the poster believed the posting would be confined to the “private” social media account or page. Stripped of the trappings of their newness, social media postings are no different from other types of communication — whether private or otherwise — that courts have allowed parties to obtain in discovery in civil litigation.  Even where access to content is limited to “friends” one court noted that the average Facebook user has 130 friends, who could share posted information with their “friends” and “friends” of “friends” and so on.   This why the court in Romano v. Steelcase noted that for social media content, “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

Q: Thank you Joshua and Ana. Is there anything else you would like to say in closing?

Ana:  Social media is not monolithic. It’s constantly changing and doesn’t exist in isolation from other information sources.  As such, a litigation-focused social media strategy should rely upon multiple sources; it should also cross-reference leads against disparate information sources (e.g., accounting records, email, sales presentations, and property records).

Joshua:  Social media is increasingly being used as a source of potentially useful evidence.  By effectively obtaining and strategically using social media in the litigation context, counsel can likely be better prepared — and better prepare their clients — to respond to social media data challenges.  It is in this regard that we are uniquely well suited to provide our clients with creative, forward-looking, and timely legal services.

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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here.

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Zimmerman Prosecutors Also Missed Key Website Evidence

As an epilogue to our recent post identifying various relevant social media evidence missed by prosecutors in the State of Florida vs. George Zimmerman prosecution, another instructive moment illustrated the importance of general website evidence and why many of our law firm clients tell us they capture website evidence on a daily basis. I’ll have more on that second point later.

Zimmerman’s lawyers called Mixed Martial Arts (MMA) trainer Adam Pollock, who trained George Zimmerman at his Florida gym from October of 2010 until “the end of 2011″— about two months before the shooting of Trayvon Martin. The defense, with apparent success, cited Pollock’s testimony to establish that the former neighborhood watch volunteer was an unaccomplished fighter and ineffective at self-defense. “He was an overweight, large man when he came to us, a very pleasant, very nice man, but physically soft – predominantly fat,” Pollock testified. “Not a lot of muscle. Not a lot of strength.” “He was about a 1,” said Pollock, when asked to rank Zimmerman’s athletic skill on a scale of 1 to 10.

It turns out however, that Pollock’s gym prominently and proudly advertised George Zimmerman as their client, offering information about obtaining the same self-defense training he received:

Zimmerman 2Click image to enlarge

This evidence, which was captured by X1 Social Discovery, would suggest bias and arguably contradicts Zimmerman’s lawyers assertion that he lacked self-defense prowess. The prosecution did not have this information available on cross-examination and, apparently learning of it at a later time, tried to re-call Pollock as a rebuttal witness. However, the court sustained the defenses’ objection on procedural grounds, noting that the State should have raised the issue on cross-examination. Also, as a side note, this web page had been deleted by then.

This is just one illustration as to why our larger law firm clients tell us they employ X1 Social Discovery on a daily — sometimes hourly — basis, as website evidence factors prominently into many types of legal matters. Witnesses often maintain personal websites or are employed by a company with a large website that often harbors bits of key information buried in the recesses of the site, yet are publicly available.

As such, all available website evidence associated with parties and witnesses should be preserved when their identities become known. Due diligence for mergers and acquisition and other securities matters, compliance monitoring, and discovery related to business disputes and intellectual property are other use cases that require extensive capture analysis of website data.

But only best practices technology that provides a scalable, automated, defensible and cost-effective capability enables website collections to be performed on a routine and standard basis. Simple screen captures are not defensible, do not scale as they only allow very limited coverage of an entire site, do not collect source page data (which often presents key evidence) and do not allow for instant search of the collected data, which is essential for a scalable and effective process. With tools like X1 Social Discovery, website data can be collected either on a single web capture or by crawling an entire site consisting of thousands of pages. Additionally, the data is instantly searchable and subject to litigation review process with filtering, intuitive first pass review, tagging, and finally export to attorney review platforms for tertiary review and production.

As with the case of other forms of electronic evidence collection, the compelling legal requirement exists long before scalable, automated and cost-effective technical solutions are developed. Now that such tools are available, we are seeing more and more legal professionals bake-in website evidence capture, along with social media, into their routine discovery processes.

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Highlights from Amazon’s Cloud eDiscovery and Search Webinar

Recently, Amazon Web Services (AWS) hosted a first of its kind webinar by a major cloud provider addressing the topics of eDiscovery and enterprise search. The webinar showcased solutions that allow organizations to quickly search, identify and act upon distributed data, whether it resides within the enterprise or within the AWS cloud. Vikram Garlapati, an Amazon Web Service Solutions Architect, lead off the discussion.

LTech CIO Eric Klotzko also presented. LTech is a cloud systems integrator and AWS partner supporting implementations of next-generation enterprise search and eDiscovery solutions that install and operate in virtual environments.Amazon Web Services2

Here are some of key highlights and takeaways:

Vikram Garlapati outlined the key benefits of the cloud, including the provisioning of resources on demand as needed as opposed to incurring large capital outlays that must meet organizations’ estimated requirements over a multi-year period. This applies to enterprise software as well, where cloud-enabled eDiscovery software can be provisioned on a monthly, weekly or even daily basis as needed.
The webinar featured a discussion featuring a compare and contrast between AWS’s Cloud Search and X1 Rapid Discovery. The presenters described AWS Cloud Search as a SaaS search engine geared toward the search of websites and static databases. Cloud Search is a solution popular with many developers in specific use cases. X1 Rapid Discovery operates in both a SaaS or IaaS (within the customers cloud instance) environment with an extensive feature set and an intuitive user interface. Vikram Garlapati stated that X1 supports “more of an enterprise scenario.”
Eric Klotzo underscored the limitations of traditional enterprise search solutions that are hardware appliance-based or require an extensive manual on-site install process, thereby rendering such solutions as non-starters for deploying into and operating within virtualized cloud deployments.
Eric also emphasized the importance of supporting hybrid cloud deployments as most cloud adoption involves an often long transitory period: “X1 can install into both the cloud and traditional on-premise locations, providing consolidated access to your data from a single pane of glass, which is very compelling.”

A recording of the AWS webinar is available here >

 

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