Tag Archives: social media

New FRCP Rule 37(e) Calls Out Importance of Social Media Evidence

By John Patzakis

A new version of Federal Rule of Civil Procedure 37(e) FRCP bookgoes into effect December 1, 2015, barring an unexpected act of Congress to amend or rescind the changes. Proposed rule 37(e), features a new title: “Failure to Preserve Electronically Stored Information,” and replaces the current subpart in its entirety, providing a uniform standard to resolve a split in case law among different Judicial circuits concerning serious ESI spoliation sanctions. Rule 37(e) will be the only Federal civil rule section addressing the duty to preserve ESI and thus serves as key guidance governing eDiscovery collection and preservation efforts.

Proposed Rule 37(e) is accompanied by official Committee Advisory notes. Judges and counsel refer to these Advisory notes to provide guidance and insight concerning the intent of the laws and how they should be applied. The Advisory notes are published alongside the statute and are in fact widely seen as an extension of the FRCP. The Advisory notes for new proposed Rule 37(e) include the following key section:

Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms. It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues (emphasis added).

This reference to social media is particularly notable as it is included in very important guidance concerning overall ESI preservation requirements.  The implication of the new law is clear:  social evidence is given at least equal weight and import as other forms of ESI such as email and documents. As an aside, the Advisory notes to the 2006 Federal Rules Amendments, specifically for Rule 37(f)  state: “When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a ‘litigation hold.’”

Due in large part as a result of this mention, legal holds quickly became a core eDiscovery requirement, with an entire sub-industry spawned.  So there is no question that the Advisory notes are highly influential.

It is notable that social media evidence is already a core component of eDiscovery evidence collection efforts by most lawyers and practitioners.  Recently, the global law firm Gibson Dunn released their influential 2015 Mid-Year eDiscovery and Information Law Update. In a section dedicated to social media, the Gibson Dunn update reports that “the use of social media continues to proliferate in business and social contexts, and that its importance is increasing in litigation, the number of cases focusing on the discovery of social media continued to skyrocket in the first half of 2015.”

And as succinctly noted by The Florida Bar Association in its publication, Florida Law Journal, “Social Media Evidence: What You Can’t use Won’t Help You” (2014) Volume 88, No. 1:

“Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations– can immeasurably help their clients resolve disputes. If not properly researched, preserved, and authenticated, the best social media evidence is worthless.”


“Social networking sites have grown from a few thousand users to more than a billion. These sites have become a preferred form of electronic communication, surpassing email in 2009. As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state’s population. Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.

And we are of course seeing this explosive trend in the adoption of X1 Social Discovery ahead of new FRCP Rule 37(e). X1 Social Discovery is the undisputed leader in its field for the preservation and analysis of social media and other internet evidence. If you are not one of the several thousand eDiscovery, legal, and digital investigation professionals who have enthusiastically incorporated X1 Social Discovery into your standard preservation protocols, new FRCP 37(e) should be your final call to action.

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Filed under Case Law, eDiscovery, Social Media Investigations

Gibson Dunn Report: Number of Cases Involving Social Media Evidence “Skyrocket”

By John Patzakis

Global law firm Gibson Dunn has released their esteemed 2015 Mid-Year eDiscovery and Information Law Update.skyrocket In a section dedicated to social media, the Gibson Dunn update reports that “the use of social media continues to proliferate in business and social contexts, and that its importance is increasing in litigation, the number of cases focusing on the discovery of social media continued to skyrocket in the first half of 2015.”

The eDiscovery update addresses key themes and several cases involving key legal issues related to social media evidence, which were previously addressed on this blog. Two key highlights cite cases affirming that mere screenshot printouts of social media evidence are not defensible and clarify overall authentication requirements in order to admit social media evidence in court.

As noted by the report “in the first half of 2015, courts continued to find that the testimony of the individual who printed a copy of a social media webpage, or prepared a memorandum summarizing information obtained from the social media account, is insufficient to authenticate social media evidence.” The report cites Linscheid v. Natus Medical Inc., 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015) (finding LinkedIn profile page not authenticated by declaration from individual who printed the page from the Internet); Monet v. Bank of America, N.A., 2015 WL 1775219, at *8 (Cal Ct. App. Apr. 16, 2015) (finding that a “memorandum by an unnamed person about representations others made on Facebook is at least double hearsay” and not authenticated).

The Report also cited “a major shift” in case law concerning the authentication of social media evidence. The Court of Appeals of Maryland determined that “in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.”  Sublet v. State, 113 A.3d 695, 698, 718, 722 (Md. 2015) (citing U.S. v. Vayner, 769 F.3d 125 (2d Cir. 2014)). Previously in Maryland, social media evidence was admissible only if the judge was “convince[d] . . . that the social media post was not falsified or created by another user.”  Griffin v. State, 19 A.3d 415 (Md. 2011).

Under Sublet, the preliminary determination of authentication is made by the trial judge and is a “context–specific determination” based on proof that “may be direct or circumstantial.” Id. at 715 (citing Vayner). The court noted that “[t]he standard articulated in Vayner … is utilized by other federal and State courts addressing authenticity of social media communications and postings.”

These cases cited by Gibson Dunn illustrate why best practices software is needed to properly collect and preserve social media evidence. Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. In many cases, such as in the Vayner case where incriminating social media evidence is at issue, that option is not available. In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the website documents are what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).

One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” in order to present the best case possible for the authenticity of social media evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts and general web pages in a thorough manner with best-practices technology specifically designed for litigation purposes.  For instance, there are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries, or a combination of them contrasted with other entries, can provide unique circumstantial evidence that can establish foundational proof of authorship.

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Judges Believe Social Media will Have Biggest Effect on eDiscovery Over the Next Two Years

The good folks at Exterro recently released a very interesting report titled “Federal Judges Survey, eDiscovery Best Practices and Trends.”  The title includes a link to download the report, which I highly recommend reading as it is good to know what the judges who rule on eDiscovery all the time are thinking.  Overall, the report calls for some necessary disruptive change in the practice of eDiscovery in order to demonstrate competency.  There are some excellent tips in the report on how eDiscovery professionals can improve and what kinds of trends we should be on the lookout for.

One finding stood out to me in particular – the Judges surveyed felt that social media would be the technology trend with the biggest effect on eDiscovery over the next two years.

Exterro Survey

As the report states, “Attorneys must be aware that all emerging technology platforms are just like email; if they hold relevant evidence you are accountable for preserving the data.”  At X1, we’ve known this for quite some time.  We’ve blogged about cases where the old way of doing social discovery – print screen – has been shown to lack authenticity standards and not meet the duty of competency that lawyers must meet.  To see the Judges recognize this as a critical trend rather than just a niche corner of the market validates what we have known for years.

It is no coincidence that X1’s Social Discovery product continues its rapid upward trajectory.  There is simply no other product on the market that offers a true investigative platform for this critical new data type.  Such a social media investigative platform will include:

  • Tight API connections to the major social media publishers like Facebook, LinkedIn, Twitter, and Instagram. The API connection allows for the capture of unique metadata that each publisher adds to its data.
  • A web crawler and capture capability that creates a copy of the page to be stored for processing into a preservation repository.
  • The ability to keep data forensically sound. This requires calculating MD5 hash values of individual items upon capture and maintaining those values through export. The platform must keeps logs and reports of all actions on data. It also must be able to use metadata to establish chain of custody and authentication.

The challenge with social media – unlike email – is that much of the data resides outside the walls of an organization.  Collection of social media becomes a challenge. Companies cannot simply call Facebook or Twitter and request all of the information for various custodians.  It is possible to take screenshots of various web pages or social media sites, but as case law points out, screenshots are not necessarily admissible as evidence.  Plus, screenshots take a technical toll on eDiscovery – they can be difficult to index and may require OCR, which still may not be able to pull text out of the image.  That is where an investigative platform like X1 Social Discovery is so important to a competent eDiscovery practice.


Filed under Best Practices, Social Media Investigations