Category Archives: Case Law

February 24, 2014 · 7:35 AM

Highlights from Reed Smith’s SharePoint eDiscovery Webinar

by John Patzakis

Reed Smith recently hosted an excellent webinar on SharePoint eDiscovery challenges, led by Patrick Burke with the firm’s eDiscovery team. The webinar featured a substantive and detailed discussion on the nuances, pitfalls and opportunities associated with eDiscovery of data from SharePoint sites. This topic is very timely as the majority of enterprises are deploying the Microsoft platform at an accelerated rate, with the solution reaching $1 billion in sales faster than any other Microsoft product in history. Burke noted that “SharePoint has exploded across corporate networks, and are filling rapidly with ESI,” but that “the bad news is that it’s not centralized. There is no single place to go to search through the ESI across an organization’s SharePoint sites to identify which SharePoint Site holds the ESI you’re looking for.”

As SharePoint enables enterprises to consolidate file shares, Intranet sites, internal message boards and wikis, project management, collaboration and more into a single platform, it provides significant operational efficiencies as well as eDiscovery challenges. The vast majority of current SharePoint deployments are versions 2007 or 2010, and neither have meaningful internal eDiscovery or even export features. This is one reason why SharePoint eDiscovery is fraught with over-collection, resulting in much higher costs and time delays that what is typically seen with other similar data stores such as email servers and file shares.

In addressing best practices for eDiscovery of SharePoint sites, Burke advised, among other key points, that the litigation hold process must not only involve individual custodians but the SharePoint administrator as well: “As it usually isn’t feasible to search all an organization’s SharePoint sites, the first step is to talk to the key custodians (through litigation hold questionnaire processes) and ask them which SharePoint sites they use (to identify) relevant ESI.” From there, “the cross-check involves talking with the SharePoint administrator, who can look up all the SharePoint sites to which the custodian’s belong.”

A full video recording of the webinar can be accessed here >

Appliance-based eDiscovery solutions or remote collections do not work as it may take weeks, if not months, to copy a multi-terabyte SharePoint site over a network connection and a large corporation may have several dozens of SharePoint silos from which to collect.  Manual collection efforts, which are geared toward mass “data dumps,” are also time consuming and are typically very costly due to the extensive processing and data massaging required to put the SharePoint data back into context.

Instead, what is needed is a solution such as X1 Rapid Discovery can quickly and remotely install and operate within the same local network domain to enable localized search, review and early case assessment in place. X1 Rapid Discovery’s full content indexing and preview of native SharePoint document libraries and lists, as well as its robust search, document filters, intuitive review interface uniquely enables targeted and contextual search, preservation and export of SharePoint evidence in its native format. In fact, we believe it is the only solution available that enables true in-place early case assessment and eDiscovery review of SharePoint sites, including iterative search, tagging and full fidelity preview in place, without the requirement to first export all of the data out of the platform.

To learn more, sign on to the recorded webinar or please contact us for a further briefing to learn how to save your organization or your clients tens of thousands of dollars on litigations costs associated with SharePoint.

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February 11, 2014 · 1:28 PM

Judge Sends Facebook Friend Request, Gets Disqualified

Add_as_friendAs part of our periodic practice, we are checking in on the reported cases involving social media evidence for this past month of January. A quick tally identifies 74 cases where social media evidence played a key role last month, which continues the trend we saw with a significant upsurge in such cases in the second half of 2013. One interesting development for January involved separate cases of misconduct on the part of a judge and a prosecutor, respectively. Below is a brief synopsis of five of the more notable January cases. While improper juror social media use is a common occurrence in the cases we monitor, the first two of the five highlighted January cases involved judicial and prosecutorial misconduct allegations from their Facebook activities:

Chace v. Loisel (Florida Court of Appeal, Jan. 24, 2014)  2014 WL 258620

In this Florida divorce case, the judge presiding over the matter sought to “friend” one of the parties, Sandra Chace, who had filed for divorce from her husband. The judicial friend request came prior to the final ruling in the martial dissolution proceeding. Upon advice of counsel, Chace declined to respond to the invitation. Thereafter, the court entered a final judgment of dissolution, with terms that Chace believed were highly unfavorable to her. Following entry of the final judgment, Chace filed a formal complaint against the judge, alleging that the court sent her a Facebook “friend” request and then retaliated against her after she did not accept the request. Chace also filed a motion with the judge for him to be disqualified, which was summarily denied.

Chace appealed the denial of the disqualification motion and the Florida appellate court granted the appeal, disqualified the judge and remanded for further hearings to address the previous rulings, which were arguably tainted. The appellate court explained as follows:  “The trial judge’s efforts to initiate ex parte communications with a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge’s neutrality. The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case.”

People v. Armstrong (California Court of Appeal, Jan. 13, 2014)  2014 WL 125939

After Defendant’s conviction for numerous crimes related to domestic violence against his wife, he sought reversal of judgment, alleging prosecutorial misconduct. Shortly before trial, and on the day the trial court ordered the prosecutor to make its key witness, a minor, available for an interview with defense counsel, the prosecutor posted the following comment on her Facebook page: “After I spent the day trying to prevent my 13 year-old star witness from being kidnapped, I found out I am getting the Prosecutor of the Year award from the Victims Service Center.”

The court, which characterized the Prosecutor’s Facebook post as “an incredible display of poor judgment” determined that the post appeared to violate Rule 5–120 of the California Rules of Professional Conduct, which prohibits members of the bar from making extrajudicial statements when “the member knows or reasonably should know that [the extrajudicial statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The prosecutor’s Facebook musings about her key witness presented a substantial likelihood, according to the court, of prejudicing the matter if any juror learned of the comment. However, even though the court admonished the prosecutor for her “foolishness,” the court found no prejudice actually occurred in this instance, thereby not justifying a mistrial.

Rodriguez v. Bank of America (U.S. Dist. Ct., Texas, Jan.  28, 2014)  2014 WL 309065

Plaintiff brought a mortgage-related lawsuit against a major lender for wrongful foreclosure and deceptive trade practices. In opposing Defendant’s summary judgment motion, Plaintiff submitted the LinkedIn profile of the bank employee who signed the deed of trust that conveyed Plaintiff’s mortgage to Countrywide Home Loans, the foreclosing bank. The LinkedIn profile reflected that the employee was not employed by Countrywide, but by another bank at the time the mortgage instrument was signed. However, the district court disallowed the LinkedIn evidence, without significant comment, on the grounds that the Plaintiff failed to properly authenticate the LinkedIn profile.

United States v. Sheikh (U.S. Dist, Ct., North Carolina, Jan. 10, 2014)  2014 WL 6050324

The Government charged Defendant with attempting to provide material support to a terrorist organization, and the Defendant sought a bail hearing for release prior to his trial. Defendant’s social media postings and activity formed the bulk of the evidence cited at the hearing.  Specifically, a FBI agent presented Facebook postings reflecting “that the defendant is comfortable with extreme violence.” Additionally, an undercover FBI agent engaged in conversations with the defendant, where he asserted that he held the al-Nusrah group in high esteem, that he was aware of their terrorist activity and wished to join them and “die a martyr.” In denying bail and pre-trial release, the court citied the Defendant inflammatory social media postings and communications as key evidence.

CrossFit, Inc. v. Alvies (U.S. Dist. Ct., California, Jan. 22, 2014)  2014 WL 6150799

Plaintiff CrossFit, Inc. (“CrossFit”) brought suit for trademark infringement, among other claims. As with seemingly the majority of current trademark, false advertising and other unfair business practices claims, social media formed a large bulk of the evidence. In fact for this case, the entirety of CrossFit’s claims were based upon the content of the Defendant’s Facebook page, which allegedly violated CrossFit’s registered trademarks throughout, culminating in a contentious takedown notice sent to Facebook pursuant to the Digital Millennium Copyright Act (“DMCA”), which Facebook obliged.

This survey group for January 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. Without question, the deluge of social media cases continues.
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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here.

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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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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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July 31, 2013 · 12:46 PM

Judge Grimm’s Important Guidance on Social Media Evidence Authentication

Judge Grimm2.jpg

District Judge Paul W. Grimm

Recently, Federal District Court Judge Paul Grimm and two of his law clerks published an excellent and comprehensive legal article: “Authentication of Social Media Evidence,” American Journal of Trial Advocacy, 36 Am. J. Trial Advoc. 433 (2013). Judge Grimm is widely seen as the one of the most influential judges concerning electronic discovery issues. He is known for several ground breaking decisions in the field including Lorraine v. Markel (2007), and Victor Stanley, Inc. v. Creative Pipe Inc. (2008). Earlier this week, The American Lawyer profiled him as one of the top 5 judges at the forefront of eDiscovery.

Given his prominence and celebrity status in the eDiscovery community, Judge Grimm’s thorough analysis and guidance on social media evidentiary authentication is an important development for social media evidence discovery. Judge Grimm succinctly summarizes his article as follows:

“Given the ubiquitous use of digital devices to communicate on social media sites, there is little chance that such evidence will cease to be highly relevant in either criminal or civil cases…Hopefully, this Article can shed some light on the nature of the confusion and offer useful suggestions on how to approach the authentication of social media evidence. It is a near certainty that the public appetite for use of social media sites is unlikely to abate, and it is essential for courts and lawyers to do a better job in offering and admitting this evidence. We hope that reading this Article will be their first step toward this goal.”

More than just a first step as a resource for courts and lawyers, I would expect judges to consider this material solid persuasive authority in deciding cases involving social media and other Internet evidence. The 29-page article is available to subscribers to LexisNexis and Westlaw, but non-subscribers can purchase the article here for $15.

Highlights of Judge Grimm’s piece include a “checklist for authentication” and a thorough discussion of the perils of relying on mere screen printouts of social media and other Internet evidence, documenting the many cases where such printouts were disallowed or otherwise subject to serious challenges by the courts. Additionally, Judge Grimm highlights Federal Rule of Evidence 901(b)(4), (authenticating evidence through internal patterns and other “distinctive characteristics”) noting that it is “one of the most successful methods used to authenticate all evidence, including social media evidence.” Judge Grimm advises the collection of “all of the circumstances and characteristics that apply to the social media exhibit that add up to a showing that, more likely than not, it was authored by the person that you contend authored it.”

We published a whitepaper on this important topic (download it here) of authenticating social media evidence, with an emphasis on Rule 901(b)(4). The bottom line is that absent uncontroverted and cooperative witness testimony, lawyers must turn to circumstantial evidence to help establish an evidentiary foundation for social media evidence. Metadata is particularly important as a “distinctive characteristic” under Rule 901(b)(4), as social media items contain a wealth of key metadata that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question.

This is where utilizing best practices technology that 1) establishes an effective chain of custody of the collected social media; and 2) captures all available metadata without alteration is essential.

In addition to Judge Grimm’s excellent piece, the New York Law Journal, a publication of the NY State Bar, published a very useful practice guide article earlier this year: “Made for Each Other: Social Media and Litigation.” 85-FEB N.Y. St. B.J. 10 (Feb 2013). Here is a key quote: “For the litigator, social media provides a wealth of information– available at one’s fingertips that just a few years ago required hiring a personal investigator to obtain.” The article includes mentions of X1 Discovery at footnotes 38, 40 and 53. A full copy of this article is available on the New York State Bar website here.

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