Tag Archives: social media evidence

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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Social Media Discovery Hotter Than Predictive Coding?

fire isolated over black backgroundIt was a great show last week at LegalTech New York. Definitely an increase in the number and quality of attendees and it was nice to see many friends and colleagues both old and new.

Also very noticeable were the many, many vendors sporting predictive coding (aka technology assisted review) messaging in their respective booths and various forms of marketing material. In fact, one industry colleague pointed me to a recent bold prediction offered by Recommind lawyer Howard Sklar, essentially proclaiming that predictive coding will have really hit the big time when a state bar organization issues an ethics opinion stating “that failure to use predictive coding is ethically questionable, if not unethical.” Sklar goes on to predict that such an opinion will come within the next 18 months.

I don’t disagree that such a development would be a big deal. But my question is, why stop at an advisory ethics opinion? What about an actual published court opinion where a sitting appellate judge decrees, without mincing words, that legal ethics obligations require lawyers to employ predictive coding? Now that would be huge. Something, in fact, like Griffin v. State, 192 Md. App. 518, 535 (2010), which addresses another hot topic in eDiscovery:

“[I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”

Now to be fair, I must point out that Griffin v. State was reversed and remanded on other grounds (419 Md. 343 (2011)), but I would argue the overall impact from an ethics and best practices standpoint is still there.

Sklar also points out three appellate level cases with written opinions that discuss the concept of predictive coding, without any definitive rulings compelling its use, but nonetheless discussing the concept. Two of the three are even retrievable on Westlaw. I think such appellate-level published decisions are important, which is why we highlight the several thousands of published court decisions in the past three years (see here and here) that have compelled the production of, admitted into evidence, or otherwise recognized the importance of social media evidence to the case at hand. New cases are being published every day, to the point where we candidly have stopped counting due to the deluge. So by the standard set by of my esteemed fellow eDiscovery lawyer Mr. Sklar, social media discovery is a very hot field indeed.

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Round up of Recent Social Media Evidence News and Resources

For this week’s entry, we have a rundown of recent developments in the world of social media evidence from some reputable sources.

KL Gates Social Media Analysis. To start off, our  previous entry discussed the case of Richards v Hertz Corp., underscoring that any law firm defending or prosecuting personal injury claims, as well as their hired eDiscovery consultants, should be investigating social media sites for source evidence as a matter of course. The same is true for employment law matters and top 10 law firm K&L Gates (which has the best eDiscovery blog of any law firm in my opinion – eDiscoverylaw.com) has a great write-up of E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc, where social media evidence is playing a key role in that case, prompting the  court to issue a broad discovery order for social media. Again, nothing really new here – just further reinforcement of the standardization of social media evidence.

Law Review and Social Media Evidence. This year, several reputable law reviews and other legal treatises have published important and very useful research notes on social media evidence. These resources are subscription only for those with access to Westlaw, but the following are a select list with cites to the articles that I found most useful:

  1.  UNDERSTANDING AND AUTHENTICATING EVIDENCE FROM SOCIAL NETWORKING SITES, 7 Wash. J. L. Tech. & Arts 209, 224+
  2.  TIPS FOR AUTHENTICATING SOCIAL MEDIA EVIDENCE, 100 Ill. B.J. 482, 485
  3.  SOCIAL MEDIA AND THE RULES ON AUTHENTICATION, 43 U. Tol. L. Rev. 367, 405+
  4.  WHAT HAPPENS ON MYSPACE STAYS ON MYSPACE: AUTHENTICATION AND GRIFFIN V. STATE, 42 U. Balt. L.F. 164, 186
  5.  INTERNET, EMAIL AND SOCIAL MEDIA EVIDENCE, ST051 American Bar Association 51+

Netflix CEO in Hot Water with SEC over Facebook Post.  Netlix CEO Reed Hastings congratulated his team for a job well done in early July on his public Facebook page, and now the SEC is investigating whether he violated investor fair disclosure rules. His message was only 43 words, boasting of increased subscribership and usage of online videos, which could be construed as material non-public information related to financial reporting. This incident obviously highlights the importance of social media monitoring consisting of best practices as part of a corporate social media compliance program.

Search Compliance Interview with Barry Murphy: Finally, this article:  Q&A: Social media data collection increasingly vital to e-discovery is a good read. eDiscoveryJournal’s Barry Murphy is arguably the most knowledgeable independent industry analyst on social media evidence issues.

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Police Embrace Social Media as Crime-Fighting Tool (CNN Article)

Recently, CNN published an article illustrating how law enforcement agencies are using social media to help solve their cases.  CNN reporter Heather Kelly, states, “leveraging Facebook is just one of many ways law enforcement officials are gleaning evidence from social media to help them solve crimes.”  According to a recent survey performed by LexisNexis on federal, state and local law enforcement officials who use social media, 4 of 5 used social media to gather evidence during investigations.  Kelly states, “Half said they checked social media at least once a week, and the majority said social media helps them solve crimes faster.”

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Mid-Year Report: Legal Cases Involving Social Media Rapidly Increasing

As part of our ongoing effort to monitor legal developments concerning social media evidence, we again searched online legal databases of state and federal court decisions across the United States — this time to identify the number of cases in the first half of 2012 where evidence from social networking sites played a significant role. The results are available here in a detailed spreadsheet listing each case, allowing for anyone to review the cases and conduct their own analysis. The cases are accessible for free on Google Scholar.  The overall tally come in at 319 cases for this 6 month period, which is about an 85 percent increase in the number of published social media cases over the same period in 2011, as reported by our prior survey earlier this year.

As with the last survey, we reviewed all the search results and added annotations for the more notable cases, and were sure to eliminate duplicates and to not count de minimis entries — defined as cases with merely cursory or passing mentions of social media sites.  As only a very small number of cases–approximately one percent of all filed cases– involve a published decision that we can access online, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period. Additionally, many of these published decisions involve fact patterns from as far back as 2008, as they are now just working their way through the appeals process. Finally, these cases do not reflect the presumably many thousands of more instances where social media evidence was relevant to an internal investigation or compliance audit, yet did not evolve into actual litigation. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence, its escalating importance and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.

The search, limited to the top four social networking sites, tallied as follows: Facebook is now far in the lead with 197 cases, MySpace tallied in at 89, mostly with fact patterns circa 2009, Twitter with 25 and LinkedIn with 8. Criminal matters marked the most common category of cases involving social media evidence, followed by employment related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/unfair competition). One interesting and increasingly common theme involved social media usage being considered as a factor in establishing minimum contacts for jurisdictional purposes. (See Juniper Networks, Inc. v. JUNIPER MEDIA, LLC, and Lyons v. RIENZI & SONS, INC, as examples)

We plan on providing a complete summary for all of the 2012 cases in early January and it safe to assume that the second half of 2012 will continue to see a sharp increase in the presence of social media evidence.

> View all 2012 cases and more now

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