Tag Archives: Ralph Losey

Discovery Templates for Social Media Evidence

Book coverAs a follow-up to the highly popular Q&A last week featuring DLA attorneys Joshua Briones and Ana Tagvoryan, they both have graciously allowed us to distribute a few of their social media discovery templates found in the appendix of their book:  Social Media as Evidence: Cases, Practice Pointers and Techniques, published by the American Bar Association, available for purchase online from the ABA here.

The first template is deposition questions relating to social media evidence. The second is a sample of special interrogatories. They can be accessed at this link. Thanks again to Joshua and Ana for their insightful interview, and for providing these resources.  Their book contains many more such templates and practice tips, including sample document requests, proposed jury instructions, client litigation hold memorandums with a detailed preservation checklist, preservation demand letters, and much more.

In other social discovery news, the ABA Journal this month published an insightful piece on social media discovery, featuring attorney Ralph Losey, with a nice mention of X1 Social Discovery. In a key excerpt, the ABA Journal acknowledges that “there is a pressing need for a tool that can monitor and archive everything a law firm’s client says and does on social media.”  The article also noted that more than 41% of firms surveyed in Fulbright’s 2013 annual Litigation Trends report, acknowledged they preserved and collected such data to satisfy litigation and investigation needs, which was an increase from 32% the prior year.

Another important publication, Compliance Week, also highlighted social media discovery, where Grant Thornton emphasizes their use of X1 Social Discovery as part of the firms anti-fraud and data leakage toolset. Incidentally,  when determining whether a given eDiscovery tool is in fact a leading solution in its class, in our view it is important to look at how many consulting firms are actually utilizing the technology, as consulting firms tend to be sophisticated buyers, who actually use the tools in “the front lines.” By our count we have over 400 paid install sites of X1 Social Discovery and over half of those – 223 to be exact – are eDiscovery and other digital investigation consulting firms. We believe this is a key testament to the strength of our solution, given the use by these early adopters.

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Filed under Best Practices, eDiscovery & Compliance, Social Media Investigations

Legal Experts: Attorneys Have an Affirmative Duty to Address Social Media Evidence

First, many thanks to all who participated in our legal ethics and social media evidence collection webinar. Special thanks also to the esteemed Ralph Losey of Jackson Lewis for his participation. Ralph provided informative legal insight as always on this topic and there were many excellent questions and comments by participants. For those who did not attend, you can view and listen to the full recording here. (There is 1 hour MCLE ethics credit available for California attorneys who review the recording in its entirety).  

During the webinar, Ralph noted in the Q&A session that given the widespread importance of social media evidence to just about every type of litigation and investigation matter, it is incumbent on attorneys and their hired consultants to understand and address social media evidence as a standard practice. Losey cited the professional ethics and standards relating to the duty of competent representation. He is not the only prominent attorney or even court to proclaim this. In Griffin v. Maryland, which involved key social media evidence, the court opined that “it should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.” (citing, Sharon Nelson et al., The Legal Implications of Social Networking, 22 REGENT U.L. REV. 1, 1-2 (2009/2010))

Additionally, in her excellent and comprehensive Delaware law review article, “Ethical Risks Arising From Lawyers’ Use of (and Refusal to Use) Social Media,” 12 DEL. L. REV. 179 (2011), attorney Margaret M. DiBianca asserts that the legal duties of competency and duty of diligent representation require that attorneys account for social media in the course of their discovery and investigation efforts. DiBianca pointedly notes that “[n]aysayers and late adopters alike may be equally surprised to learn that ignoring social media altogether may constitute a violation of their ethical obligations.”

And as we outlined a few weeks ago, the Plaintiff’s attorney in Lester v. Allied Concrete Company did not equate social media evidence with more traditional forms, causing him to blithely instruct 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 process 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 and include its investigation in their standard processes and checklists. Many legal experts would say professional standards of care require it.

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Filed under Legal Ethics & Social Media

Can Lawyers Be Disqualified by Merely Viewing a Linkedin Profile? The Implications of Indirect Social Media Communications and Legal Ethics Rules

With attorneys and their hired consultants routinely collecting social media evidence for investigation and eDiscovery purposes, it is important to be aware that such activity can generate various direct and indirect communications to the subject account owners.  Sending a Facebook “friend” or a LinkedIn “connect” request are obvious examples, but there are also less overt means of social media communications. For instance, if a hypothetical law firm named Smith & Wesson were to merely follow a witness on Twitter, the service will automatically email the witness with a notification that Smith & Wesson is now following her. Additionally, it is all too easy when viewing a Facebook page to inadvertently “like” an item or accidentally send a friend request through a single mouse click.  And if you simply view another’s Linkedin profile while logged into your own account, that person will often be notified that you viewed his or her profile page.  Ethical Implication

For lawyers and their hired consultants and investigators, all this can be very problematic considering legal ethics rules that strictly regulate communications with represented parties and even jurors connected to a case. Several local and state bar associations have issued legal ethics opinions discussing this issue specific to collecting social media evidence. On December 6, X1 Discovery hosted a live webinar to delve deeper into this topic with the esteemed Ralph Losey of Jackson Lewis as the featured speaker. Ralph is the lead eDiscovery partner at Jackson Lewis and the author of “The eDiscovery Team,” considered by many to be the best legal eDiscovery blog on the planet. You can register for the recorded version of this webinar at this link here. (One hour of ethics CLE credit will be available to California attorneys).

From our perspective, this critical concern involving indirect social media communications and legal ethics 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. If user credentials to the social media account have been properly obtained, that is obviously ideal. However, in many instances lawyers must resort to searching and collecting publicly available information. In such situations, it is crucial that the law firm and/or its hired experts conduct such collections in the proper manner.

For instance, X1 Social Discovery software features public Facebook capture that can search and collect publicly available Facebook pages without directly or indirectly notifying the account holder. This is critical functionality for eDiscovery preservation. Additionally, X1 Social Discovery accesses and displays Facebook pages in read-only mode, preventing metadata alternation, inadvertent friend requests or “like” tagging through a simple slip of the mouse. X1 Social Discovery includes other features concerning Twitter and Linkedin that also prevent indirect communications while effectively collecting data from those sites. We will be highlighting those features in the next few weeks, but in the meantime, we hope you enjoy our webinar.

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Filed under Best Practices, Legal Ethics & Social Media