Tag Archives: social media

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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Social Media Case Law Update — November 2013

Law Journal2As part of our periodic semi-monthly practice, we are checking in on the reported cases involving social media for this past month of November. Based upon reader feedback, I am going to try and make this a regular monthly feature on this blog.  So a quick tally identifies 76 cases where social media evidence played a key role last month, which is consistent with our overall analysis 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 last month alone.

The following are brief synopses of five of the more notable social media cases from November 2013:

 

AvePoint, Inc. and AvePoint Public Sector, Inc. v. Power Tools, Inc.  (U.S. Dist. Ct., Virginia, Nov.  7 2013) 2013 WL 5963034

In this Federal District Court case, software maker AvePoint, Inc., brought a trademark infringement and defamation action against competitor, Axceler, based upon allegedly false and deceptive statements that Axceler and its agents made about Avepoint through Twitter and LinkedIn, including setting up a fake LinkedIn account. AvePoint’s complaint features extensive evidence from Twitter and LinkedIn to establish trademark infringement, unfair business practices and actual confusion (a critical element for trademark infringement claims) amongst third parties.

Specifically, the complaint alleges that the defendant created a bogus account on LinkedIn purportedly for AvePoint representative named Jim Chung, thereby misappropriating the use of plaintiff’s registered trademark.  Emphasizing the confusion caused by the defendant’s actions, the plaintiff noted Jim Chung’s LinkedIn connection list.  The defendant also used Twitter to tweet messages in furtherance of the ruse.  The District Court refused Axceler’s request to dismiss most of the nine counts set out in AvePoint’s complaint, and the case remains pending.

In re Air Crash Near Clarence Center, New York, (U.S. Dist, Ct., New York, Nov. 18, 2013) 2013 WL 6073635

In a consolidated wrongful death action arising out of a fatal commercial airline crash near Buffalo, New York in 2009, the Defendant sought a supplemental production of one of the Plaintiff’s Facebook account, to include any new information and also Plaintiff’s extensive friend list, which was omitted from the previous production. Previously, the Court ordered production of social media account records consisting of more than 2,000 pages, after finding such records relevant to two specific issues in that case—Plaintiff’s domicile and the claimants’ loss of support claims. The Defendant argued that production of Plaintiff’s “friend list”  is relevant to assessing his Disorder, particularly his ability to socialize and communicate with others. The court found the request for production of the friends list to be not relevant to the claims at hand, but did order supplemental production of any new information in the Facebook account created since the prior production.

Shepherd v. McGee (U.S. Dist. Ct., Oregon, Nov.  7, 2013), 2013 WL 5963076

This employment case involved a scenario commonly referred to as a “Facebook firing.”  Jennifer Shepherd, a child protective services worker at the Oregon Department of Human Services (DHS), went to juvenile court six to eight times per month on behalf of children who she believed where being abused or otherwise were not safe in their homes. However, she posted several inflammatory messages to her Facebook page that disparaged many of the families and individuals whose homes she visited in a generalized manner, to wit: “If you physically abuse your child, someone should physically abuse you…If you don’t like my rules, too bad. I have a Ph.D., and you don’t, so I get to make up my own imaginary rules.”

The posts were seen by Shepherd’s Facebook friends, including a defense attorney and Polk County Circuit Court Judge. A DHS manager forwarded the posts to Ken McGee, an HR manager. McGee thought the posts reflected her own bias, which, in her position, she was supposed to put aside.  Shepherd was placed on leave and then terminated.

Deputy District Attorney Max Wall said Shepherd’s Facebook musings “would also likely require questioning as to her viewpoints on the abuse of children each time plaintiff took the stand in such a case and would likely hamper current and future cases.” Department of Justice Senior Assistant Attorney General Brian Raymer believed that Shepherd was “terminally and irrevocably compromised” and said her Facebook posts would prevent him from ever calling her as a witness. In his opinion, her statements would create trust issues with DHS clients and would reflect adversely on DHS in the relevant local community.

The court determined that the termination was justifiable and legal, noting that “Wall’s and Raymer’s declarations establish actual, material and substantial disruption to their working relationships with plaintiff.” The court concluded, “The government employer does not have to compromise its function by allowing the employee to actually cause disruption or fail to perform his or her job duties in order to establish an impairment in efficient operations.”

Hawkins v. College of Charleston, (U.S. Dist, Ct., South Carolina, Nov. 15, 2013) 2013 WL 6050324

Plaintiff alleged discrimination against College of Charleston in violation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. Prior to the filing of litigation, but during a time when the court determined litigation was reasonably foreseeable, Plaintiff deleted his Facebook account, resulting in what the court determined to be wrongful spoliation, and accordingly the Defendant College of Charleston moved to dismiss the action. The Court determined, however, that while the Facebook evidence was relevant to the case, it was “not central.” Additionally, the court found that while the Plaintiff, who suffers from cystic fibrosis and depression, intentionally deleted his Facebook account, he did not do so to prejudice his litigation, but to “rid his online profile of a painful time in his life.” Nonetheless, the court determined that a lesser penalty short of dismissal, such as an adverse inference instruction, was appropriate and would be imposed at a later time.

Bosh v. Cherokee County Governmental Building Authority  (U.S. Dist. Ct., Oklahoma, Nov.  22, 2013)    2013 WL 6150799

Plaintiff filed claims for civil rights violations arising out of alleged excessive force incident at Cherokee County Detention Center (“CCDC”). Plaintiff sought limited production of Facebook evidence related to the incident from one of the Defendants who apparently shared or transmitted information about the incident through his Facebook account. Separately, the Plaintiff sought full production of essentially Plaintiff’s entire Facebook account. While granting the first limited request, the court denied the broader request, deeming it “to be a thinly veiled attempt to gain permission to embark on a ‘fishing expedition’” into the Defendant’s Facebook account. The judge further reasoned that while “the Court is sensitive to Plaintiff’s concerns regarding compliance with this Order, Plaintiff has presented the Court with no reason to believe Defendant Chronister or his counsel of record, who is an officer of this Court in good standing, will neglect their legal or ethical obligations to faithfully comply with this Court’s orders.”

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Social Media Evidence at the Center of the A-Rod Suspension

Earlier this month, Major League Baseball took the unprecedented step of suspending a star player, Alex Rodriguez, for two years due alleged illegal use of performance enhancing drugs (PEDs). A-RodWhile the suspension of one of baseball’s greatest players of all time made the headlines, the critical role social media evidence played in tying “A-Rod” to Biogenesis, the company which allegedly provided him with the PEDs, is an important sub-story. While we are not at liberty to discuss any details of the social media investigation software used by any of the parties, this Associated Press report describes a detailed, thorough and highly professional investigation of the social media evidence involved.

Specifically, investigators collected key evidence from publically available Facebook posts and Tweets from associates of the targets, which apparently proved to be the most effective source of evidence. Per the AP: “Baseball investigators examined the Facebook pages of (Biogenesis founder Anthony) Bosch and Porter Fisher, the former Biogenesis associate who gave documents to the newspaper. They began to sketch out which people they were friends with, and which of those friends posted photos of athletes or mentioned athletes. Each link led to new loops that provided leads.”

In response to the investigation, MLB players’ union general counsel David Prouty noted that social media evidence “adds a layer of proof that certainly wasn’t available many years ago.”

This type of thorough investigation of publically available social media evidence is only possible with best practices technology that enables scalable and automated collection of up to millions of items preserved and organized in a single case in an instantly searchable and reviewable format.

Given its very high profile and the high stakes involved (The suspension could cost A-Rod over $100 million) the A-Rod case represents a seminal development in the field of social media and Internet investigations. According to the media reports, this is not a situation where social media evidence merely served a supporting role, but was a difference-maker that apparently formed the basis of the suspension.

No need to comment further.

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