Tag Archives: discovery

X1 First To Offer Social Discovery Certification

by Barry Murphy

Education, training, and certification programs are foundational elements of any profession.  When it comes to relatively new functions like social media discovery, the importance of good training and certification options is amplified.  There is a dearth of expertise coupled with the need for corporations and law firms to address challenges quickly – that combination creates an immediate need for formal and effective training.

The activities within the eDiscovery profession tend to be specialized.  For example, forensic disk imaging requires a specific skill set that is very different from the skill set required to run predictive coding review workflows and projects.  As a result, generic eDiscovery certifications have yet to gain mainstream traction in a meaningful way.  This is not to say such programs are not valuable; they are.  However, given the lack of a standards board or independent third-party that has published a treatise on what it means to be qualified to perform “eDiscovery,” it is difficult for any one certification to be an industry standard.  Further, the eDiscovery profession is a sum of many tasks, most of which are performed by various team members (as opposed to one person being responsible for, or capable of performing, all).  What I hear from eDiscovery professionals when it comes to certification is that there is simply not enough definition as to what it means to be a certified eDiscovery professional.

One type of certification that is more important than ever is vendor-specific (or tool-specific) certification.  Previous eDJ Group research had validated the fact that training and education programs are critically important for the practice of eDiscovery.

Vendor certifications

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For years, it has been critically important that forensic investigators be certified on the tools they use – such as Guidance Software’s Encase (EnCE, EnCEP) or AccessData’s FTK (ACE).  Likewise, the Relativity Certified Administrator credential (RCA) from kCura has gained significance in the hosting and review market.  As such, upon joining X1, I was very pleased to hear that the company will offer certification for our X1 Social Discovery tool.  Why is certification for the Social Discovery tool so important?  First, social media is now ingrained in our business lives.  eDJ Group research from September 2013 shows that almost two-thirds of workers now use external social networks like Facebook or LinkedIn for business purposes.

Social Media Part of Business

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Second, social discovery is still fairly new and requires in-depth training.  With X1 Social Discovery, users need to understand how MD5 hash values of individual items are calculated upon capture and maintained through export. They need to understand the automated logging and reports that are generated. They need to be educated on the key metadata unique to social media & web streams that are captured through deep integration with APIs provided by the sites and how this metadata is important to establishing chain of custody and authentication.  Given these new challenges, a certification program just makes sense.  Even better, X1’s Social Discovery tool will be the only one on the market with a certification program in place.  That will be an important distinction in the market, especially given the large amount of law enforcement customers for the product (doing things by the book is extremely critical in law enforcement investigations).

The X1 Social Discovery Certification course, offered by DigitalShield, will cover:

  • Introduction to the foundational skills and knowledge needed to understand social media collection, analysis, review and delivery
  • Best practices for locating and collecting social media
  • Providing investigators, digital forensic examiners and eDiscovery practitioners with the technical skills to use X1 Social Discovery
  • Hands-on training using X1 Social Discovery to collect, manage, and analyze data from Twitter, YouTube, Facebook, webmail and websites

To sign up for the training or to learn more, click here >  

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Filed under Social Media Investigations, Training and Certification

Social Media Case Law Update: Volume of Cases Accelerating

Recently our survey of published case law from 2010 and 2011 identified 689 cases involving social media evidence for that time period.  While these results exceeded our expectations, that pace is actually rapidly accelerating in 2012. For this past April alone, a quick tally identifies 61 cases where social media evidence played a key role. We will have a mid-year report in a few months, but it appears that the volume of cases has about doubled year over year. Keep in mind that the survey group only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated or otherwise resolved in April 2012.

The following are brief synopses of three of the more notable social media cases from April:

Blandv. Roberts, 2012 WL 1428198 (E.D.  VA, Apr. 24, 2012)  

This case is notable in that it extensively litigated the implications of “liking” specific items on Facebook.  In this situation the Hampton, Virginia Sheriff’s Office employed Bland and his co-workers, under Sheriff B.J.  Roberts. Roberts faced a contested election and Bland and his cohorts backed the challenger Jim Adams, going so far as to “like” Adam’s Facebook page. As it turned out, the plaintiffs “liked” the wrong horse. Roberts won the election, and he subsequently fired Bland and the other Adams-backers. The Sheriff justified the terminations on cost-cutting grounds, but plaintiffs argued that their termination violated their First Amendment rights, as Roberts was aware that the plaintiffs’ “liked” Adam’s Facebook page, which plaintiff’s asserted to be protected speech. The court ultimately determined that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection and thus the termination was lawful.

From our perspective, the ultimate outcome of Bland v. Roberts is not so much the point as is plaintiffs’ subtle activity on Facebook representing substantive facts of the case.  The act of liking a Facebook entry can be an important piece of evidence in a wide variety of litigation and investigation scenarios. Just to identify a few possible examples, it can constitute evidence toward a party’s knowledge of a particular fact, or the extent of trademark infringement or publication of defamatory material, or identify relevant witnesses in a case. This case illustrates why it is important to collect and preserve all available information on Facebook and other social media sites in a thorough manner with best-practices technology specifically designed for litigation purposes.

People v. Harris, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)

In this case, the defendant faced charges of disorderly conduct after marching onto the Brooklyn Bridge as a participant in the Occupy Wall Street protests.  The New York District Attorney’s Office subpoenaed Twitter, Inc., seeking user information and Tweets from a particular time period for the Twitter account @destructuremal—the account allegedly used by the defendant.  The defendant filed a motion to quash the subpoena.

In denying the defendant’s motion, the court relied heavily on the public nature of Twitter and its terms of service, which establish that users have no expectation of privacy and no proprietary interest in their Tweets. The court noted that the terms of service state that by submitting a post or displaying content, a user has granted Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”  Thus, the court reasoned, “defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interest” in them.  In assessing the Plaintiff’s privacy rights, the court again relied on Twitter’s Terms of Service, which clearly inform users that their information will be viewable by others and which specifically state that “[w]hat you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”

Loporcaro v. City of New York and Perfetto Contracting Company,  35 Misc.3d 1209(A), (N.Y. Sup. Ct. Apr. 9, 2012)

This is yet another serious personal injury claim where the claimant’s public Facebook postings contradicted their assertions of serious injury. Plaintiff claimed permanent disability from two knee injuries while on the job as a firefighter, seeking redress against Perfetto Contracting Company, Inc., alleging defective road conditions caused his injury. However, his public Facebook postings suggested that he continued to maintain an active lifestyle. This prompted the court to grant the defense’s motion to compel production of the Plaintiff’s full Facebook account, ruling as follows:

“When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public. Clearly, our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material, and it is impossible to determine at this juncture whether any such disclosures may prove relevant to rebut plaintiffs’ claims regarding, e.g., the permanent effects of the subject injury. Since it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery.”

Earlier this year we covered the case of Tompkins vs. Detroit Metropolitan Airport, which also highlighted the importance of systematic search of public Facebook as standard procedure for nearly every type of criminal and civil litigation investigation.

We will have an update in about four weeks for the social case law published in May, so stay tuned.

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Filed under Best Practices, Case Law