Tag Archives: Twitter

Social Discovery: An Interview With Howard Williamson

This week’s blog is something new for X1 – a Q & A with Howard Williamson, the General Manager for X1’s market leading Social Discovery product.  Howard is an experienced digital forensics expert and began his career in law enforcement, which gives him a unique perspective on the practice of social discovery.  I had the pleasure of interviewing Howard this week on what is a very hot topic – social discovery.

Why Social Discovery?

Howard:  I remember back in the mid-1990’s there was a real feeling of excitement around digital forensics.  It was the cutting edge of the forensics field and the work was really fun.  Social media is now what digital forensics was in the mid to late 1990s – it’s the cutting edge of where investigation and intelligence is right now.  The work is fun because there are lots of challenges; the fun part is taking the practice from good to great.  That is what attracted me to the opportunity at X1 – because X1 Social Discovery can make the practice great because the product addresses the challenges of defensibly collecting a high volume, diverse data set like social media.

How does the law enforcement background complement this role?

Howard:  Ultimately, the goal of social discovery is to collect data in a manner that allows it to be used in criminal or civil litigation.  Knowing how that process works is critical.  The law enforcement background gives that experience of defensible collection across many different types of digital evidence.  And, on the criminal side of things, the standards of defensibility are quite high, so carrying that over to the civil side means that X1 will always meet high authenticity standards.  I bring that high bar from the digital forensics world to this brave new world of social media.

What’s new about this practice?
Howard:  The nice thing about now versus the mid-1990s is that we are now using purpose-built tools like X1 Social Discovery rather than co-opting system administration and network tools like we did in the early days of computer forensics.  That makes the Modern evidenceprocess more efficient and more complete.
Rather than using a sledgehammer to put a nail in, we are using a hammer.  The tool is built specifically for social discovery and therefore makes the practice more efficient.  Whereas in the early days of digital forensics, collection procedures where often made up on the fly, with Social Discovery, the approach is much more structured and systematic.  At X1, with our experience, we are certainly able to think and react on the fly to new challenges, but with a purpose-built tool, we can do so much more efficiently.  And, in the eDiscovery world, efficiency and defensibility are two very important things.

Are you seeing social discovery specialists pop up? 

Howard:  What we are seeing is that digital forensics professionals and intelligence professionals are implementing social discovery into their processes and procedures.  There are not “specialists” in social media; rather, the social discovery tool allows more people to collect this type of data as part of a broader job.  They are also doing things like mobile forensics and other digital forensics.  Thus, X1 Social Discovery has become an important tool in their toolkit.  The tool actually makes it easier to bring social media content into the collection because the professional doesn’t have to dive deep into things like mobile operating systems.  It becomes easier to be an expert in social collection because the product makes it simple to collect and analyze.

Do you think that Social discovery is a mainstream practice now?

Howard:  It absolutely is.  The evidence of that is our business.  X1 has nearly 500 paid install sites and nearly 4,000 end users conducting social discovery.  These users got ahead of the curve and have social media integrated into their processes.  The growth opportunity is still huge because it is inevitable that case law will force everyone to take social media more seriously, in the way that the Enron case put a spotlight on electronic discovery in general.  Law enforcement got the importance of social media evidence early on.  Even though a more typically cautious industry, police departments see that social media is a critical form of evidence and have built it into collection processes.  This is how most areas of forensics have evolved.   There is an attitude that, if it’s good enough for criminal law, it’s good enough for civil court.  That is part of what’s exciting for X1 – we have a great base of law enforcement customers putting the product through the paces.  X1 Social Discovery is truly battle-tested and no other solution works quite as well.  We are nicely positioned as the social discovery leader in a mainstream market with high growth potential.

What should we look for in the next year of social discovery?

Howard:  I would expect to see the big social networks continue to gain traction.  I don’t foresee a new behemoth social network to challenge the popularity of Facebook and Twitter.  From an app perspective, self-destructing messaging looks to remain popular as privacy becomes more of a concern.  Forensics will play a large role in determining whether those messages are truly destroyed or actually discoverable.

X1 will continue to build out connectors to more and more social networks and improve reporting and deliverables.  There will be more ability to analyze the data within the investigation platform.   What X1 wants to enable is people to do their jobs within a given workflow.  Some users will want to collect and review social media directly within X1, and the tools enables them to do that.  Others have examiners collect the data, but then move to a review tool where litigators can look at it.

Big thanks to Howard Williamson for sharing his time with us.  If you have questions about social discovery, please contact us at info@x1.com for more information.

_________________________________________

Catch Howard’s lecture at HTCIA’s Annual Conference, Tuesday, August 26, where he will cover Social Media Collection and Review >

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under Best Practices, Social Media Investigations, Uncategorized

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.”

1 Comment

Filed under Case Law, Social Media Investigations