Author Archives: X1

Under 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 January 2017 where evidence from social networking sites played a meaningful role in the litigation. The initial search returned over 2,000 results. That is far too many to review manually, but through random sampling to eliminate duplicates and de minimis entries — defined as cases with merely cursory or passing mentions of social media sites — we counted over 1,200 cases accessible through Westlaw and/or Google Scholar for January 2017.

And as only a very small number of cases — approximately one percent of all filed cases — involve a published decision or brief that we can access online, it is safe to assume that tens of thousands more cases involved social media evidence during this time period. Additionally, these cases do not reflect the presumably many hundreds of thousands of more instances where social media evidence was relevant to a corporate or law enforcement investigation yet did not evolve into actual litigation. Even so, this limited survey is an important metric establishing the ubiquitous nature of social media evidence, its unequivocal and compelling importance, and the necessity of best practices technology to search and collect this data for litigation and compliance requirements. There is no question that nearly every criminal investigation and civil litigation matter involves at least some social media and internet-based evidence.

The following are a brief synopsis of five notable cases from the survey:

Brown v. State, (Ga: Supreme Court, January 23, 2017). In this case, the prosecution presented key evidence from a variety of social media sources, including a “cropped screenshot” from a YouTube video, several incriminating Facebook postings and a copy of a photograph downloaded from a Twitter account. The items were admitted into evidence and the defendant was convicted on all counts. However, a motion for new trial was brought on the basis of challenging the authenticity of the social media evidence introduced as screen shots. The court overturned the conviction on one of the counts (count of criminal gang activity). The Georgia Supreme Court upheld that ruling but determined that improper authentication was a harmless error as to the remaining counts that Defendant was also convicted on.

State v. Kolanowski, (Wash: Court of Appeals, January 30, 2017).  In another case involving the failure to authenticate social media evidence, a criminal defendant unsuccessfully sought to admit a screenshot of Facebook evidence that he maintained would have served as critical impeachment against the prosecutions’ main witness.  During pretrial motions, the State sought to exclude Facebook records that lacked foundation, and the defendant sought to admit a March 2015 screenshot of what purported to be a 2:49 a.m., February 8, 2014 Facebook post. The authenticity of that screenshot was successfully contested. It is apparent from the record that various metadata and other circumstantial evidence was not available (which could have been collected using best practices technology) that very well may have served to establish a proper evidentiary foundation.

ZAMUDIO-SOTO v. BAYER HealthCARE PHARMACEUTICALS INC. (US Dist. Ct, ND California, January 27, 2017). In this matter, a major product liability claim was barred on statute of limitation grounds based exclusively on the Plaintiff’s comments on her Facebook post.  Plaintiff’s Facebook comments drew a connection to her injury and the alleged defective product in question, and was posted on May 26, 2011, more than two years prior to her filing suit against Bayer. The court determined that Plaintiff’s Facebook post started the clock for her to bring her claim within the two year statute of limitations period. However, as she did not file her suit until January 2015, the court ultimately barred her action.

Jacobus v. Trump, (NY Supreme Court, January 9, 2017) This high-profile libel case is notable in that the claim against then-candidate Donald Trump was exclusively based upon social media evidence in the form of two separate tweets. Plaintiff Jacobus is a Republican political consultant and frequent commentator on television news channels and other media outlets, who was contacted by the Donald Trump campaign to potentially serve as a key staff member. After several meetings, Plaintiff ultimately did not join the campaign, based upon what she asserts was a mutual decision.  A few months later, Jocobus appeared on CNN where she made some comments that were critical of Trump. In response, Trump tweeted:  “@cherijacobus begged us for a job. We said no and she went hostile. A real dummy!”  A day later, on February 3, 2016, Plaintiff’s then lawyer sent Trump a cease and desist letter. Two days after that, Trump posted the following tweet about Plaintiff: “Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!” Ultimately the court construed Trump’s comments to be “hyperbolic” opinion, based upon subjective perception of events, and thus did not constitute defamation under the law, and thereby dismissed Jacobus’s claim.

Johnson v. ABF Freight System, Inc. US Dist. Court, MD Florida, January 27, 2017. This opinion is based upon a motion to compel discovery of the Plaintiff’s Facebook account. The Defendant asserted that Plaintiff’s Facebook account would be relevant to his damages claims arising out of a serious personal injury claim. The Court granted the motion to compel, but limited the production of the Facebook account to a certain date range and also only information that related to his employment and business activities and efforts to gain employment.

There is no question that the volume of cases involving social media evidence is increasing on a monthly basis. In addition to case law, another metric reflecting the industry’s standardization of social media evidence collection is the sheer volume of sophisticated customers that have now adopted X1 Social Discovery. Nearly 500 eDiscovery and computer forensics services firms have at least one paid copy of X1 Social Discovery. I cannot think of a single service provider in the eDiscovery space that performs at least some ESI collection services that does not have at least one paid X1 Social license. Social media evidence collection is now a standard practice in many law enforcement matters as well. So, if you are one of the minority of digital investigative or eDiscovery professionals who have not adopted X1 Social Discovery, please contact us for a demo today.

X1 and Reed Smith recently hosted a timely webinar on new Federal Rule of Evidence 902(14) and its expected impact on eDiscovery and computer forensics collection practices. Reed Smith senior partner and eDiscovery practice chair David Cohen led the discussion, providing a substantive and detailed discussion on the new rule, including its nuances and expected practice impact. FRE 902(14) provides that electronic data recovered “by a process of digital identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed, as certified through a written affidavit by a “qualified person.” A detailed discussion of Rule 902(14) can be found here.

The webinar, which also provides a detailed overview of the rule, features excellent analysis and insight from David Cohen on how he anticipates the new rule will be applied. In fact, the key takeaway from the webinar is that while FRE 902(14) technically goes into effect on December 1, 2017, Cohen correctly noted that ESI collected in a Rule 902(14) compliant manner any time prior to the rule’s effective date can be subject to the new rule’s provisions once the rule goes into effect. This is important, because digital evidence is routinely collected well in advance of trial. Electronic evidence that an examiner collects today may not be actually introduced at trial until one year or more from now, so practitioners need to understand and account for Rule 902(14) immediately.

Cohen believes that FRE 902(14) will be widely applied and will overall increase the utilization of eDiscovery and computer forensics practitioners. This is because the rule provides a streamlined and very efficient process to establish a foundation for ESI collected in a Rule 902(14) manner. This will increase predictability by eliminating surprise challenges, and will encourage, instead of discourage, the use of forensics and eDiscovery practitioners by allowing written certifications in the place of expensive and burdensome in-person trial testimony. Cohen also noted that while most cases do not proceed to trial, a much higher percentage involve dispositive court motions (such as a motion for summary judgment in civil actions) and he expects FRE 902(14) to be widely used in support of such motions.

I have covered eDiscovery and computer forensics law for over 15 years, and in my opinion, FRE 902(14) is the single most important legal development directly impacting ESI collection practices to date. All eDiscovery and computer forensics professionals have a professional responsibility to keep current with key legal and technological developments in the field. There is no question FRE 902(14) is such a development, and all those involved in ESI preservation and collection from both a technical, legal and managerial perspective need to be fully briefed on the law.

Viewing the video recording of the webinar is a good start, and it can be accessed here.