Author Archives: X1

December 10, 2013 · 11:12 AM

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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November 18, 2013 · 9:21 AM

Dr. Michael Levitt: World Famous Scientist, Nobel Laureate, and X1 Power User

Michael Levitt Nobel Prize in Chemistry 2013

Michael Levitt
Nobel Prize in Chemistry 2013

Recently I had the distinct honor of speaking with Dr. Michael Levitt, a 2013 Nobel Prize winner for Chemistry, and highly regarded Professor of Structural Biology at Stanford University. The Nobel Committee awarded Dr. Levitt a Nobel in recognition of his research in computational biology, “for the development of multiscale models for complex chemical systems.” He is also a “huge fan” of X1. When Dr. Levitt and I spoke, he discussed his daily use of X1 Search and how it is essential to his research and professional productivity. “X1 saves me many hours per week,” per his unsolicited email to us at X1 that initiated our dialogue, “I cannot survive without it.”

A computer-savvy scientist, Dr. Levitt relies on a Macintosh laptop with VMWare virtualization running a Windows OS, where he stores 200 gigabytes of data, including 40 gigabytes of over 300,000 emails, and of course relies on X1 to make sense of it all. “Next to my computer itself, X1 is the one tool I can’t do without,” explained Dr. Levitt.  “People use the term ‘big data’ a lot these days, but the most important ‘big data’ for me is the 200 gigabytes on my laptop that consists of decades of research, important communications with fellow academics, and other key resources.  X1 enables me to find what I am looking for instantaneously. It is a very effective interface to all of my information.”

Dr. Levitt credits X1’s lightning-fast, iterative and faceted search capability, along with X1’s reliability and stability, as enabling him to quickly and tactically sift through 200 gigabytes of emails and academic research. “X1 is an intimate part of my workflow — it is essentially an extension of my mind when I engage in information retrieval, which is many times an hour during my workday.”

In addition to locating his research and other critical data, X1 proved very handy to Dr. Levitt in managing an important email response project. “When I was awarded the Nobel, I received over two thousand congratulatory emails. I used X1 to cross reference my sent folder to make sure I replied to them all. That X1 shortcut saved me several hours alone!”

Dr. Levitt’s testimonial echoes similar sentiments expressed by many high-powered business professionals at top financial institutions, major law firms, consulting companies and science and engineering firms. They all rely on X1 to dramatically enhance their productivity by quickly locating their information amongst an ever-increasing avalanche of emails and other data.

We here at X1 extend our congratulations to Dr. Levitt for his 2013 Nobel prize in Chemistry, as well as our sincere thanks to him for reaching out to us and sharing his enthusiastic feedback on X1 search, which, incidentally, is completely gratis. “Just keep developing great software” is all he asked for in return.

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November 11, 2013 · 11:03 AM

The Post-PC Era Will End eDiscovery Collections as we Know It

Post PC World image

Updated 11/14/2013: Amazon Webs Services announced today a “game changing” cloud-based desktop virtualization offering.

“As of next month, no employees get a new PC, we are going all virtual and B.Y.O.D.” These words, spoken by one of our customers from one of the world’s largest financial institutions, should be disconcerting to anyone in the traditional eDiscovery collection business.  With well over 1000 computer forensics and eDiscovery services businesses in the US and Canada alone, ranging from small shops to large firms with hundreds of eDiscovery professionals on staff, the industry faces substantial disruption going forward. This is because most all of these firms thrive on full disk imaging, or otherwise manual collections, from the PCs and laptops issued to corporate employees, either as a substantial source of revenue, or a foundational first step that feeds into their processing and hosting business.

However, enterprises have entered a “post-PC world,” where desktop virtualization, cloud, social media, and mobile devices are supplanting the traditional PC infrastructure and “local” data storage. In fact, desktop virtualization, which will be about a six billion dollar market in 2016 according to industry researcher the 451 Group, is an ideal infrastructure to enable B.Y.O.D. as employees can have access to a virtual PC across a broad range of devices, from traditional PCs and laptops to smartphones and tablets. However, in such a framework, all the employees’ data and applications are stored and managed centrally in a virtual environment.

In addition to enabling B.Y.O.D., a virtual desktop infrastructure (VDI) provides IT significant benefits through the ability to centrally manage user desktops, gaining efficiencies in costs and resources. VDI provides for simpler desktop provisioning, lower costs for deploying new applications, improved desktop-image management, and improved data integrity through centralized backup services. In addition to a reduction in both desktop operating costs and call support, there is also a reduction in the number and duration of downtime events.

However, finding content is difficult enough on a traditional desktop, but the issue is compounded with the virtualized variety. There are many compelling benefits to VDI, but the architecture does not facilitate or even enable traditional desktop search solutions or physical disk imaging for forensic examination. X1 Search 8 provides search capabilities across physical, virtual and cloud environments with results returned in a single pane. X1 was specifically architected to uniquely and seamlessly operate in virtual desktop environments, including popular Citrix solutions XenApp and XenDesktop.

To further explore the disruptive challenges and benefits of VDI, X1 is partnering with one of the nations’ top VDI consulting firms, Agile 360 in a November 17 webinar (register here) to outline these challenges and opportunities associated with search and information access in VDI environments. We hope you can attend to learn more about the disruptive changes in store for enterprise search and eDiscovery in the Post-PC enterprise.

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October 21, 2013 · 10:20 AM

Facebook Spoliation Levels the eDiscovery Playing Field

When an individual or small company plaintiff litigates against deep-pocketed defendants, the eDiscovery burden and risk largely falls on the latter. In employment litigation for instance, the employer must collect, review and produce up to hundreds of thousands of emails and electronic documents, with the plaintiff-employee usually not required to do much at all. The reason for this is obvious, as typically the employer possesses nearly all of the relevant documents. Many individual Plaintiffs achieve knock-out punches by establishing spoliation by a corporate adversary, with Zubulake vs. UBS Warburg being just one of many examples.

However, as Federal District Court Judge Craig B. Shaffer noted last month in his Federal Courts Law Review article, social media can turn the tables. In his co-authored piece “Looking Past the Debate: Proposed Revisions to the Federal Rules of Civil Procedure,” 7 Fed. Cts. L. Rev. 178 (September, 2013), Judge Shaffer, as part of a broader analysis of the proposed amendments to the FRCP that affect eDiscovery, calls out the important new strategic dynamics of social media evidence:

“In the past, particularly in an asymmetrical case (such as a single employee discrimination action brought under Title VII), plaintiff’s counsel might have paid only fleeting attention to his or her client’s preservation obligation since it was presumed that the defendant employer had possession, custody or control of all the relevant ESI. That confidence may be misplaced, however, with the advent of social media. As one court recently observed, there is ‘no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.’ A party is presumed to have control over their social networking accounts and relevant information on those sites is discoverable…Since the plaintiff controls when litigation commences, as well as the nature and scope of any claims asserted, a plaintiff’s attorney who does not take early and affirmative steps to preserve social media content risks spoliation sanctions.”

The most notable case involving social media spoliation so far this year is Gatto v. United Air Lines, Inc., 2013 WL 1285285, (D.N.J. Mar. 25, 2013). In Gatto, a JetBlue employee filed a personal injury suit, alleging United’s negligence caused a set of fueler stairs to crash into him. Gatto claimed that his injuries rendered him permanently disabled and that his disability limited his physical and social activities. United sought discovery of Gatto’s social media accounts, but Gatto refused to comply and deactivated his account. The court ultimately awarded United an adverse inference instruction based on Gatto’s failure to preserve his Facebook account and his intentional destruction of evidence. (See also, Cajamarca v. Regal Entertainment Group, 2012 WL 3782437, (E.D.N.Y. Aug. 31, 2012) (plaintiff’s counsel sanctioned for failing to advise client to preserve Facebook communications); Katiroll Co., Inc. v. Kati Roll and Platters, Inc., 2011 WL 3583408, (D.N.J. Aug. 3, 2011) (court finds party failed to preserve trademark-infringing Facebook profile and ordered remediation to original state to enable production).

And then there is of course Lester v. Allied Concrete Company, where the Plaintiff’s attorney blithely instructed his client to rid his Facebook page of damaging evidence, resulting in what many attorneys believe is the most severe eDiscovery court sanction imposed upon a lawyer. However, for every situation like the Lester case where relevant social media is brought to the forefront, there are presumably many others where important social media evidence is overlooked by attorneys and their service providers who do not include social media as part of their standard eDiscovery preservation checklist. As it is now established that social media is highly relevant as evidence, it is important that attorneys, paralegals, eDiscovery consultants and investigators proactively seek out such evidence from their clients, witnesses and opponents alike, and include its investigation in their standard processes and checklists. Many courts and legal experts have now weighed in to establish that professional standards of care require it.

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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here >

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October 4, 2013 · 8:42 AM

Social Media Caselaw Update: The Acceleration Continues

Last year our survey of published case law from 2010 and 2011 identified 689 cases involving social media evidence for that time period. Since then, the pace has so rapidly accelerated that it became difficult to keep up with the deluge. quote9bHowever, for this past month of September, a quick tally identifies 88 cases where social media evidence played a key role, 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 September 2013:

State v. Smith, (Supreme Court, Tenn.), Sept. 10, 2013 — S.W.3d —- 2013 WL 4804845; Tennessee Supreme court vacates first degree murder conviction on the sole grounds that one of the jurors communicated with a prosecution witness during trial via Facebook. The court lamented that Internet and social media “has exponentially increased the risk….of extra-judicial communications between jurors and third parties.” This decision is but one example of this common occurrence of juror misconduct through social media use, requiring attorneys and jury consultants to engage in on-going passive monitoring of publicly available social media information.

In re Hydroxycut Marketing and Sales Practices Litigation (US District Court, Calif, Sept. 17, 2013) 2013 WL 5275618. A federal judge disallowed an objection to a $25.3 million class action settlement as not credible. The court relied in large part on the objecting Plaintiff’s Facebook postings where she demonstrated a pattern of recruiting other people to be objectors to various high-stakes class action proposed settlements for compensation, including recent class actions involving HR Block and Discover.  This led the court to conclude that “her posts were aimed toward finding objectors…Clearly, Ms. McBean works closely with others who seek to represent objectors in class action lawsuits.” The court determined that the objecting Plaintiff was not a credible class member and struck her objection to the settlement.

Rodriquez v. Wal-Mart Stores, Inc., (5th Circuit. September 19, 2013)  — Fed.Appx. —- 2013 WL 5274468.  Plaintiff Virginia Rodriguez filed suit against Wal–Mart/Sam’s Club Stores, for discrimination based on age and national origin, and retaliation under the Texas Commission on Human Rights Act (“TCHRA”). Plaintiff’s serious violation of the company’s social media policy was the decisive employment offense which led to her termination. Wal–Mart’s Social Media Policy prohibits any conduct that adversely affects job performance or other associates. While the Social Media Policy allows employees to post complaints online, the comments cannot appear “unprofessional, insulting, embarrassing, untrue, [or] harmful.” The court determined that Ms. Rodriguez’s insulting Facebook comments regarding a co-worker were legitimate and not pretextual grounds for her termination. The Court dismissed her suit on summary judgment.

Fox v. Transam Leasing, Inc.   US District Court, Kansas. Sept. 18, 2013) 2013 WL 5276111. In this case, Transam Leasing sought the production of current archives of the Facebook and Twitter accounts of the Plaintiffs. The court found that such information would be potentially relevant to the litigation and overruled Plaintiffs’ “unfounded” objections. But the court did provide Plaintiffs the following option for responding to the social media request: “Plaintiffs shall provide the archive information, as requested…As an alternative, however, Plaintiffs may satisfy the requests by providing all of the following information from their respective Facebook and Twitter accounts: any discussions or complaints about defendant(s); any communications regarding the intent of any Plaintiff to sign up to drive for defendant(s); and any discussions about this law suit that is not subject to a legal privilege.”

Daniels Agrosciences, LLC v. Ball DPF, LLC, (US District Court, Rhode Island. Sept. 20, 2013) 2013 WL 5310208. This is another in a long line of cases where social media usage is considered as a factor in establishing minimum contacts for jurisdictional purposes. The fact pattern here is not unique, but this is the most recent example.

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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here.

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