Category Archives: Case Law

November 16, 2012 · 10:28 AM

5 Case Studies of Social Media Evidence in Criminal Investigations

Law enforcement agencies across the nation are using social media to identify, detect and solve crimes. According to a recent survey by LexisNexis Risk Solutions of more than 1,200 law enforcement professionals with federal, state, and local agencies. 83% of the respondents are using social media, particularly Facebook and YouTube, to further their investigations. More than two-thirds (67%) of respondents believe that social media helps solve crimes more quickly.

This trend is also reflected in our ongoing survey of case law involving social media, where we recently identified 319 cases published in online databases in the first six months of 2012, which is about an 85 percent increase in the number of published social media cases over the same period in 2011, as reported by our prior survey earlier this year. About one half of those cases were criminal matters. As noted before, these are only the matters with published decisions that allow for us to see the facts of the case. As only a small fraction of cases involve an accessible published decision, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period.

Below is a sampling of five recent criminal cases that illustrate both the importance of social media evidence to crime fighting and the diverse nature of cases involved. The published court opinions are publicly available via the hyperlink:

Bradley v. State

This is one of many recent cases where social media evidence was used to identify suspects and/or witnesses. In Bradley, the victim of an armed robbery identified his assailants through publically available Facebook photos. In its opinion denying Bradley’s appeal, the Texas appellate court pointedly noted that “Vast online photo databases—like Facebook—and relatively easy access to them will undoubtedly play an ever-increasing role in identifying and prosecuting suspects.”

Hoffman v. State

In Hoffman, an 18-year old female was convicted of vehicular manslaughter. The Court enhanced her sentence when the prosecution introduced into evidence her MySpace page with photos and comments glamorizing alcohol abuse.

US v. Anderson

Our survey results included several dozen cases involving child exploitation investigations. In US v. Anderson, a pedophile used Facebook to identify and lure victims.

People v. Mincey

After these sex offenders are convicted and released on probation or parole, they need to be monitored. There are many cases such as People v. Mincey where the defendant violated their probation by using and communicating on social media sites.

US v. Collins

In this court filing, it is revealed that the “Anonymous” hacker group employed Twitter to communicate and coordinate attacks: Terms of probation sought to prevent the defendants from using Twitter while on probation. Monitoring Twitter is a crucial capability for cybercrime investigations.

Click here for more published cases involving social media in 2012

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August 30, 2012 · 12:47 PM

Police Embrace Social Media as Crime-Fighting Tool (CNN Article)

Recently, CNN published an article illustrating how law enforcement agencies are using social media to help solve their cases.  CNN reporter Heather Kelly, states, socialpolice“leveraging Facebook is just one of many ways law enforcement officials are gleaning evidence from social media to help them solve crimes.”  According to a recent survey performed by LexisNexis on federal, state and local law enforcement officials who use social media, 4 of 5 used social media to gather evidence during investigations. Kelly states, “Half said they checked social media at least once a week, and the majority said social media helps them solve crimes faster.”

> Read complete CNN article

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July 23, 2012 · 3:20 PM

Mid-Year Report: Legal Cases Involving Social Media Rapidly Increasing

As part of 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 the first half of 2012 where evidence from social networking sites played a significant role. The results are available here in a detailed spreadsheet listing each case, allowing for anyone to review the cases and conduct their own analysis. The cases are accessible for free on Google Scholar.  The overall tally come in at 319 cases for this 6 month period, which is about an 85 percent increase in the number of published social media cases over the same period in 2011, as reported by our prior survey earlier this year.

As with the last survey, we reviewed all the search results and added annotations for the more notable cases, and were sure to eliminate duplicates and to not count de minimis entries — defined as cases with merely cursory or passing mentions of social media sites.  As only a very small number of cases–approximately one percent of all filed cases– involve a published decision that we can access online, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period. Additionally, many of these published decisions involve fact patterns from as far back as 2008, as they are now just working their way through the appeals process. Finally, these cases do not reflect the presumably many thousands of more instances where social media evidence was relevant to an internal investigation or compliance audit, yet did not evolve into actual litigation. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence, its escalating importance and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.

The search, limited to the top four social networking sites, tallied as follows: Facebook is now far in the lead with 197 cases, MySpace tallied in at 89, mostly with fact patterns circa 2009, Twitter with 25 and LinkedIn with 8. Criminal matters marked the most common category of cases involving social media evidence, followed by employment related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/unfair competition). One interesting and increasingly common theme involved social media usage being considered as a factor in establishing minimum contacts for jurisdictional purposes. (See Juniper Networks, Inc. v. JUNIPER MEDIA, LLC, and Lyons v. RIENZI & SONS, INC, as examples)

We plan on providing a complete summary for all of the 2012 cases in early January and it safe to assume that the second half of 2012 will continue to see a sharp increase in the presence of social media evidence.

> View all 2012 cases and more now

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June 4, 2012 · 5:31 PM

Judge Peck: Cloud For Enterprises Not Cost-Effective Without Efficient eDiscovery Process

Hon. Andrew J. Peck
United States Magistrate Judge

Federal Court Magistrate Judge Andrew Peck of the New York Southern District is known for several important decisions affecting the eDiscovery field including the ongoing  Monique da Silva Moore v. Publicis Group SA, et al, case where he issued a landmark order authorizing the use of predictive coding, otherwise known as technology assisted review. His Da Silva Moore ruling is clearly an important development, but also very noteworthy are Judge Peck’s recent public comments on eDiscovery in the cloud.

eDiscovery attorney Patrick Burke, a friend and former colleague at Guidance Software, reports on his blog some interesting comments asserted on the May 22 Judges panel session at the 2012 CEIC conference. UK eDiscovery expert Chris Dale also blogged about the session, where Judge Peck noted that data stored in the cloud is considered accessible data under the Federal Rules of Civil Procedure (see, FRCP Rule 26(b)(2)(B)) and thus treated no differently by the courts in terms of eDiscovery preservation and production requirements as data stored within a traditional network. This brought the following cautionary tale about the costs associated with not having a systematic process for eDiscovery:

Judge Peck told the story of a Chief Information Security Officer who had authority over e-discovery within his multi-billion dollar company who, when told that the company could enjoy significant savings by moving to “the cloud”, questioned whether the cloud provider could accommodate their needs to adapt cloud storage with the organization’s e-discovery preservation requirements. The cloud provider said it could but at such an increased cost that the company would enjoy no savings at all if it migrated to the cloud.

In previous posts on this blog, we outlined how significant cost-benefits associated with cloud migration can be negated when eDiscovery search and retrieval of that data is required.  If an organization maintains two terabytes of documents in the Amazon or other IaaS cloud deployments, how do they quickly access, search, triage and collect that data in its existing cloud environment if a critical eDiscovery or compliance search requirement suddenly arises?  This is precisely the reason why we developed X1 Rapid Discovery, version 4. X1RD is a proven and now truly cloud-deployable eDiscovery and enterprise search solution enabling our customers to quickly identify, search, and collect distributed data wherever it resides in the Infrastructure as a Service (IaaS) cloud or within the enterprise. While it is now trendy for eDiscovery software providers to re-brand their software as cloud solutions, X1RD is now uniquely deployable anywhere, anytime in the IaaS cloud within minutes. X1RD also features the ability to leverage the parallel processing power of the cloud to scale up and scale down as needed. In fact, X1RD is the first pure eDiscovery solution (not including a hosted email archive tool) to meet the technical requirements and be accepted into the Amazon AWS ISV program.

As far as the major cloud providers, the ones who choose to solve this eDiscovery challenge (along with effective enterprise search) with best practices technology will not only drive significant managed services revenue but will enjoy a substantial competitive advantage over other cloud services providers.

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May 22, 2012 · 12:14 PM

Surging Wage and Hour Class Action Suits and the Importance of Social Media Evidence

Wage and hour class action suits are rising dramatically. According to the USA Today, Plaintiffs filed 7,006 federal court wage-and-hour suits in 2011, many of them class actions, nearly quadruple the 2000 total. Many of these suits involve claims of misclassifying employees as exempt from overtime, especially salespersons and temporary professional employees. Additionally, these claims involve allegations of non-exempt employees being required to work off hours through the use of mobile devices, webmail and social media.  As such, social media evidence is playing an important role in the litigation of wage and hour claims on multiple levels.

As one recent example, a federal court in the Northern District of California earlier this month imposed monetary sanctions of nearly $16,000 and disqualified the lead plaintiff as the class representative in a wage and hour class action for failing to disclose relevant Facebook evidence. In Calvert v. Red Robin International, the lead plaintiff proved to be very active on Facebook, using the site to communicate with other claimants and to recruit potential plaintiffs into the class. The plaintiff and his lawyers failed to disclose this evidence, which the defendant’s law firm ultimately obtained through their own diligent investigation efforts. Such disqualifications and monetary sanctions against the lead plaintiff can prove to be important tactical victories in cases such as these.

Calvert is just one of many recent wage and hour cases that we have seen where social media has played a critical role. For instance, our customers have recently reported successfully using X1 Social Discovery in wage and hour claims, including, for example, to collect Linkedin and Facebook evidence that contradicted Plaintiffs claims that they were non-exempt employees. In addition to this customer use example and the case of Calvert v. Red Robin International, there are numerous other scenarios where the search and collection of social media evidence can be essential to the litigation of wage and hour cases, highlighting the importance of best practices technology to diligently represent your clients’ interests.

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