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Social Media Discovery is Game-Changing, and The Smart Practitioners Get It

by John Patzakis

Last week we featured guest blogger Mark Lanterman, Chief Technology Officer of Computer Forensics Services, Inc., who discussed how he performed innovative and cutting-edge social media investigations. The key takeaway is that social media evidence is very often publically available, opening up a whole new world in terms of litigation tactics. Imagine if you could have extensive, instantaneous and legal access to the Plaintiffs’ file cabinet and hard drive at the outset of every case? Well, that is more or less the situation with publically available social media evidence, which can be quite extensive.

Social media discovery efforts can clearly make the difference in, or at least greatly assist your clients’ case, especially if one moves quickly and proactively at the outset of the litigation, or even a claim at the pre-litigation stage. This is why Lanterman and his team often act proactively in their social media investigation and collection efforts, resulting in game-changes results for their clients.

And this is no longer lost on legal experts and the likes of the American Bar Association and State Bar Associations who draft ethics rules governing attorney’s general duty of competence. The New Hampshire Bar Association recently published Opinion 2012-13/05 providing that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” And the ABA recently published Comment [8] to Model Rule 1.1, which provides that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” (See also: California Proposed Formal Opinion Interim No. 11-0004, “Attorneys who handle litigation may not simply ignore the potential impact of evidentiary information existing in electronic form.”)

In this context, Lanterman’s compelling case study is something that every litigator and eDiscovery professional must heed. Lanterman’s assessment that social media evidence is relevant and important in over 70 percent of the cases he handles is consistent with our tracking of case law. It is also consistent with our discussions with many of our other service provider partners who use X1 Social Discovery on a daily basis, on behalf of their law firm in insurance company clients. The smart practitioners who understand this and embrace social media and website discovery are getting ahead by providing their clients a very powerful and effective service. In some cases, they are single handedly winning cases for their clients.

Earlier this month my colleague Barry Murphy wrote about the 80/20 rule when it comes to social discovery. Among the 20 percent you have eDiscovery professionals like Mark Lanterman who see social media evidence as a huge tactical advantage for their clients resulting in a rapidly expanding practice and gained credibility with his clients. The 80 percent consist of firms that have a handful of copies of X1 in their toolkit and employ them a few times a month in response to being specifically told to do so by their law firm clients. This is surprising as eDiscovery consultants are technical experts, who by definition are supposed to be ahead of the curve or at least abreast with developments in the field. They certainly should not be laggards.

But the 80/20 rule doesn’t apply just to eDiscovery service providers, we see some very savvy attorneys who utilize social media evidence in a highly strategic fashion. In fact, in some cases we see the attorneys ahead of eDiscovery service providers on this issue. There is one particular story that stands out from a big firm litigator, lamenting that one eDiscovery service provider he spoke with included floppy disks on their ESI preservation checklist, but not social media. And with social media discovery now essentially mandated as a matter of professional competence and ethics, a serious eDiscovery practitioner or attorney does not want to be on the wrong side of the 80/20 rule.

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SharePoint Search: Beyond eDiscovery

by Barry Murphy

I had the pleasure of conducting a SharePoint eDiscovery webinar with Patrick Burke of Reed Smith for the OLP last week.  The subject is fascinating because finding, preserving, and reviewing SharePoint content in the litigation/investigation context can be so challenging.  The metadata users add to content (e.g. workflow tasks), the web page interface that creates more native ESI than just a document, and the decentralization of SharePoint deployments make eDiscovery for SharePoint a topic unto itself.  Often lost in this topic is the issue of end-user search of SharePoint.

When I talk about end-user search in SharePoint, most people just assume that the search functionality baked in to the product (Microsoft acquired FAST Search & Transfer several years back) is enough.  In some cases, that will be correct, but in others it does not work to give business users efficient access to information.  Some companies have standardized on SharePoint as an enterprise content management (ECM) platform while others have some departments that use SharePoint for sharing files and managing specific business processes.  In either situation, the reality is that business workers store information in multiple places – SharePoint, email, network file shares, etc.  To find that information is often a frustrating task of switching from application to application only to have a subpar search experience.

Consider the screenshot below of a search experience in SharePoint:

SharePoint blog 1

Click to enlarge

The experience leaves something to be desired in that I have to execute several more clicks on the left to do any kind of filtering and, in the result set itself, it is very difficult to know if any of these are the document I am looking for because I can’t see the document itself.  I would need to open it first.  In addition, as a business worker, I probably don’t know if I should be looking in email, file shares, or SharePoint for the document I need.  I know I saw it somewhere, but can’t remember where.  In this search experience, if I don’t find what I am looking for in SharePoint, I now have to go search my email and then my file system.  It adds up to a waste of time.

Now, consider a unified, single-pane-of-glass approach:

SharePoint blog 2

Click to enlarge

In this user interface, I can search across email, files, and SharePoint.  I can see a full-fidelity preview of the attachment.  I can refine on any kind of metadata.  It is a positive search experience that is helpful and allows me to be efficient.  More and more people realize now that this unified access to information is critically important. That may be why SharePoint guru Joel Oleson said, after a X1 Search 8 product demo, “the great news is seeing unified search across the variety of platforms [email, file shares, SharePoint] in a single powerful desktop product priced very reasonably.”  It’s because business workers really do need that unified interface across all information.  To be forced to move from email to SharePoint just to run a search can be frustrating and time consuming.  For SharePoint administrators, not having to worry about a user’s search experience in SharePoint is liberating.  When business workers and IT administrators are both happy, the world is a better place.

Read Joel Oleson’s complete review of X1 Search 8 here >

 

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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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