Category Archives: Case Law

June 30, 2021 · 2:21 PM

Relativity and X1 Publish Joint Legal Whitepaper on ESI Collection Best Practices

By John Patzakis

Relativity and X1 have published a joint legal whitepaper on the topic of full-disk imaging as a disfavored collection practice in civil litigation, with Relativity eDiscovery attorney David Horrigan as the lead author. The paper delves into all the legal reasons, including detailed analysis of case law, the Federal Rules of Civil Procedure, and the Sedona Principles establishing why forensic collection is not required in civil litigation. The paper primarily focuses on the principles of proportionality in its legal analysis as well as case law issued prior to the 2015 amendment to the Federal Rules of Civil Procedure, which gave greater prominence and clarification of the proportionality rules.


This is an important topic as a key problem in eDiscovery that drives inefficiencies and higher costs is that default collection methods often involve full-disk imaging—a forensic examination of an entire computer—when searching for responsive data. As the whitepaper notes, “it turns out full-disk imaging is not required for most eDiscovery collections. In fact, courts often disfavor the practice.”


A copy of the whitepaper can be found here.

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Filed under Authentication, Best Practices, Case Law, eDiscovery, ESI, law firm, Preservation & Collection, proportionality

May 12, 2021 · 10:12 AM

X1 Social Discovery Case Law Update

by John Patzakis

X1 Social Discovery had a key mention in a US Federal Court decision published last week. Edwards v. Junior State of America Foundation, No. 4:19-CV-140-SDJ, (US Dist. CT, E.D. Texas April 23, 2021), is a civil litigation matter involving the intentional destruction (spoliation) of social media evidence. The plaintiff had deleted his Facebook account resulting in lost evidence critical to the case. The court cited an affidavit submitted by an eDiscovery expert witness who noted that when X1 Social Discovery was used to collect from the Plaintiff’s Facebook account, key evidence that existed prior to the litigation was missing because it had been deleted by the Plaintiff prior to the X1 Social Discovery collection.

As a result of the spoliation established in large part by the X1 Social Discovery examination, the Court imposed severe evidentiary sanctions on the plaintiff, including the exclusion of evidence and claims related to the destroyed Facebook data, and adverse jury instructions. This case once again illustrates the critical importance of social media evidence and the need to both properly preserve key social media evidence in not only a comprehensive manner, but also as soon as possible when actual or constructive notice of the litigation arises.

As we have documented extensively on this blog, the outcome of numerous cases have been determined by the improper destruction of social media evidence. Jury awards in civil cases have been overturned, criminal convictions have been thrown out and attorneys disbarred because social media evidence was not properly preserved utilizing best practices.

In fact, in another case decided last week, an Oregon trial court in a criminal matter had excluded key Facebook evidence because the prosecution failed to properly authenticate the Facebook evidence. In State of Oregon v. Acosta, 311 Or.App. 136 (May 5, 2021), the prosecution offered no forensics or technical evidence to establish an evidentiary foundation for the offered social media evidence, and instead relied upon screenshots and witness testimony. After the trial court excluded the prosecution’s social media evidence on the grounds of insufficient authentication, the case was brought up on appeal and the appellate court ended up reversing in a very close call, finding that the offered non-forensic witness testimony offered was sufficient. However, in many other cases the proponent of the social media evidence using mere screenshots have not been as successful, and this whole appeal could have been avoided by the government if they had used best practices. In fact, when X1 Social Discovery is used to collect and authenticate social media and other web-based data, the evidence is not only properly authenticated, but costly protracted court proceedings and appeals such as in the two cases above is avoided. When X1 Social Discovery is used, our customers report that it encourages evidentiary stipulations for the admission of the collected data under Federal Rule of Evidence 902(14) or similar state rules.

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Filed under Best Practices, Case Law, eDiscovery, law firm, Preservation & Collection, Social Media Investigations, Social Media Metadata

April 6, 2021 · 10:23 AM

On TAP: Targeted, Automated, and Proportional Collection for Modern e-Discovery

By John Patzakis

Proportionality is now the hottest legal issue in the area of eDiscovery, with the largest number of eDiscovery-related cases in the past year addressing the subject. eDiscovery attorney Kelly Twigger leads a team who produced an excellent analysis of 2020 case law, noting “a big jump to 889 in 2020” of cases addressing proportionality, “which represented nearly a third (31%) of all (eDiscovery) case law decisions last year.” The report notes that “[p]roportionality arguments have become a weapon in arguing scope of discovery and the sharp rise in disputes has illustrated the need for more systematic and standardized approaches to assessing proportionality in cases today.” 

Proportionality-based eDiscovery is a goal that all judges and corporate attorneys want to attain. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. Lawyers that take full advantage of the proportionality rule can greatly reduce cost, time and risk associated with otherwise inefficient eDiscovery.

Proportionality is getting a further boost as George Washington University Law School is developing an important proportionality benefit-and-burden model that provides a practical structure for assessing claims of proportionality. The model features a heat map mechanism to identify relevant custodians and data sources to enable a more objective application of proportionality, thereby facilitating negotiations and better informing the bench.

The GW Law model is much needed, as while there is keen awareness of proportionality in the legal community, attaining the benefits requires the ability to operationalize workflows as far upstream in the eDiscovery process as possible. For instance, when you’re engaging in data over-collection, which in turn runs up of a lot of human time and processing costs, the ship has largely sailed before you are able to perform early case assessments and data relevancy analysis, as much of the discovery costs have already been incurred at that point. The case law and the Federal Rules provide that the duty to preserve only applies to potentially relevant information, but unless you have the right operational processes in place, you’re losing out on the ability to attain the benefits of proportionality.

An example of a process that effectively applies proportionality on an operational basis would be an iterative exercise to identify relevant custodians, their data sources, applicable data ranges, file types and agreed upon keywords, following the process outlined in  McMaster v. Kohl’s Dep’t Stores, Inc., No. 18-13875 (E.D. Mich. July 24, 2020), and collect only the data that is responsive to this specific criteria. The latest enterprise collection tech from Relativity and X1 enable such detailed and proportional criteria to be applied in-place, at the point of collection. This reduces the data volume funnel by as much as 98 percent from over-collection models, yet with increased transparency and compliance. In other words, a collection process that targeted, automated and proportional, instead of one that is overbroad and manual.

To learn more about these concepts, please tune in on April 13, where attorney David Horrigan of Relativity and Mandi Ross of Prism Litigation Technology will be leading a webinar to discuss the legal and operational considerations and benefits of proportionality. The webinar will also feature a live exercise performing a pre-collection proportionality analysis on remote employee data. You can register here.

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Filed under Best Practices, Case Law, ECA, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, law firm, Preservation & Collection, proportionality

July 29, 2020 · 9:54 AM

Federal Judge: Custodian Self-Collection of ESI is Unethical and Violates Federal Rules of Civil Procedure

By John Patzakis

In E.E.O.C. v. M1 5100 Corp., (S.D. Fla. July 2, 2020), Federal District Judge Matthewman excoriated defense counsel for allowing the practice of unsupervised custodian ESI self-collection, declaring that the practice “greatly troubles and concerns the court.” In this EEOC age discrimination case, two employees of the defendant corporation were permitted to identify and collect their own ESI in an unsupervised manner. Despite no knowledge of the process the client undertook to gather information (which resulted in only 22 pages of documents produced), counsel signed the responses to the RFP’s in violation of FRCP Rule 26(g), which requires that the attorney have knowledge and supervision of the process utilized to collect data from their client in response to discovery requirements.Gavel and books

This notable quote from the opinion provides a very strong legal statement against the practice of ESI custodian self-collection:

“The relevant rules and case law establish that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection, and production. It is clear to the Court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized. There is simply no responsible way that an attorney can effectively make the representations required under Rule 26(g)(1) and yet have no involvement in, or close knowledge of, the party’s search, collection and production of discovery…Abdicating completely the discovery search, collection and production to a layperson or interested client without the client’s attorney having sufficient knowledge of the process, or without the attorney providing necessary advice and assistance, does not meet an attorney’s obligation under our discovery rules and case law. Such conduct is improper and contrary to the Federal Rules of Civil Procedure.”

In his ruling, Judge Matthewman stated that he “will not permit an inadequate discovery search, collection and production of discovery, especially ESI, by any party in this case.” He gave the defendant “one last chance to comply with its discovery search, collection and production obligations.”  He then also ordered “the parties to further confer on or before July 9, 2020, to try to agree on relevant ESI sources, custodians, and search terms, as well as on a proposed ESI protocol.” The Court reserved ruling on monetary and evidentiary sanctions pending the results of Defendants second chance efforts.

A Defensible Yet Streamlined Process Is Optimal

EEOC v. M1 5100, is yet another court decision disallowing custodian self-collection of ESI and underscoring the importance of a well-designed and defensible eDiscovery collection process. At the other end of the spectrum, full disk image collection is another preservation option that, while being defensible, is very costly, burdensome and disruptive to operations. Previously in this blog, I discussed at length the numerous challenges associated with full disk imaging.

The ideal solution is a systemized, uniform and defensible process for ESI collection, which also enables targeted and intelligent data collection in support of proportionality principles. Such a capability is only attainable with the right enterprise technology. With X1 Distributed Discovery (X1DD), parties can perform targeted search and collection of the ESI of hundreds of endpoints over the internal network without disrupting operations. The search results are returned in minutes, not weeks, and thus can be highly granular and iterative, based upon multiple keywords, date ranges, file types, or other parameters. This approach typically reduces the eDiscovery collection and processing costs by at least one order of magnitude (90%), thereby bringing much needed feasibility to enterprise-wide eDiscovery collection that can save organizations millions while improving compliance by maintaining metadata, generating audit logs and establishing chain of custody.

And in line with the Judge’s guidance outlined in EEOC v. M1 5100, X1DD provides a repeatable, verifiable and documented process for the requisite defensibility. For a demonstration or briefing on X1 Distributed Discovery, please contact us.

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July 21, 2020 · 9:02 AM

Another Criminal Conviction Overturned Due to Failure to Authenticate Social Media Evidence

By John Patzakis

The Supreme Court of Vermont overturned a felony conviction due to the prosecutions’ failure to properly authenticate social media evidence, finding that the printed records subpoenaed directly from Facebook were insufficient. (Vermont v. Allcock, July 10, 2020) Defendant Christina Allcock appealed her convictions for aggravated assault on a police officer and other related lesser offences, asserting the trial court erred in admitting Facebook messages that lacked sufficient evidentiary foundation. The Vermont Supreme Court reversed the main aggravated assault conviction, but affirmed the lesser charges.scales-justice-no-print

During trial, the State moved to admit a “Facebook Business Record” that included private messages sent from a Facebook account with defendant’s name that implicated her and served as key evidence in her conviction.  Law enforcement officers testified that they learned of these messages when the recipient contacted the police and provided screenshots of the messages on his phone. The police then executed a search warrant and obtained data from Facebook regarding the page registered in defendant’s name, in the form of the Facebook Business Record. The record listed the account holder’s name, email addresses, phone numbers, but there was no testimony at trial directly tying this information to the defendant.

The Vermont Supreme Court ruled that the Facebook content:

“[C]annot be authenticated merely by the fact that the account from which the messages were sent purported to be that of defendant Christina Allcock. The Court cited 2 R. Mosteller et al., McCormick on Evidence § 221 (8th ed.) (explaining that the purported signature or recital of authorship on the face of a writing is not sufficient proof of authenticity to secure the admission of the writing into evidence). Digital communications are no different from other writings in this regard. The ‘judicial skepticism toward the recital of authorship in documents’ is viewed as a necessary check on the perpetuation of fraud.” Id.

The court also noted that “the fact that the Facebook Business Record showed that the account was registered in defendant’s name likewise does not provide sufficient information from which a jury could conclude that the account belonged to defendant and that she sent the messages at issue…The critical question for purposes of authentication is whether the account did in fact belong to defendant.”

The court provided guidance on how the prosecution could have successfully authenticated the Facebook evidence, such as presenting “evidence that the Facebook page associated with the account in question had distinct information or personal photos not in the public domain” or unique identifying metadata associated with the account in question.

Vermont v. Allcock is yet another illustration why software that supports best practices is needed to properly collect and preserve social media evidence. The case is also a lesson that obtaining a mere printout of records from the social media provider itself is insufficient. Instead, the examiner who preserved the social media or other Internet must be able to present sufficient evidence that “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), will support a finding” that the evidence presented is what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).

One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” in order to present the best case possible for authenticating social media evidence collected with the software. This includes collecting all available metadata, including account and message IDs and generating a hash value checksum of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts, messages, accounts and general web pages in a thorough manner with best-practices technology specifically designed for litigation purposes.  There are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries, or any combination of them could provide unique circumstantial evidence that would establish foundational proof of authorship, which is one of the many reasons why thousands of legal and investigative professionals rely on X1 Social Discovery.

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Filed under Authentication, Best Practices, Case Law, Case Study, Preservation & Collection, Social Media Investigations, Social Media Metadata