Category Archives: eDiscovery & Compliance

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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September 19, 2013 · 10:43 AM

Discovery Templates for Social Media Evidence

Book coverAs a follow-up to the highly popular Q&A last week featuring DLA attorneys Joshua Briones and Ana Tagvoryan, they both have graciously allowed us to distribute a few of their social media discovery templates found in the appendix of their book:  Social Media as Evidence: Cases, Practice Pointers and Techniques, published by the American Bar Association, available for purchase online from the ABA here.

The first template is deposition questions relating to social media evidence. The second is a sample of special interrogatories. They can be accessed at this link. Thanks again to Joshua and Ana for their insightful interview, and for providing these resources.  Their book contains many more such templates and practice tips, including sample document requests, proposed jury instructions, client litigation hold memorandums with a detailed preservation checklist, preservation demand letters, and much more.

In other social discovery news, the ABA Journal this month published an insightful piece on social media discovery, featuring attorney Ralph Losey, with a nice mention of X1 Social Discovery. In a key excerpt, the ABA Journal acknowledges that “there is a pressing need for a tool that can monitor and archive everything a law firm’s client says and does on social media.”  The article also noted that more than 41% of firms surveyed in Fulbright’s 2013 annual Litigation Trends report, acknowledged they preserved and collected such data to satisfy litigation and investigation needs, which was an increase from 32% the prior year.

Another important publication, Compliance Week, also highlighted social media discovery, where Grant Thornton emphasizes their use of X1 Social Discovery as part of the firms anti-fraud and data leakage toolset. Incidentally,  when determining whether a given eDiscovery tool is in fact a leading solution in its class, in our view it is important to look at how many consulting firms are actually utilizing the technology, as consulting firms tend to be sophisticated buyers, who actually use the tools in “the front lines.” By our count we have over 400 paid install sites of X1 Social Discovery and over half of those – 223 to be exact – are eDiscovery and other digital investigation consulting firms. We believe this is a key testament to the strength of our solution, given the use by these early adopters.

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August 29, 2013 · 2:06 PM

Microsoft’s Lessons for the eDiscovery Industry

Microsoft imageThe announcement that Microsoft CEO Steve Ballmer is set to retire within 12 months naturally spurred some thought on the analogous plateauing or even demise of prominent eDiscovery software firms in recent years. In my view, there are two general lessons to be gleaned by the eDiscovery industry from Microsoft’s troubles.

The first is about the speed of change in this industry. Three years ago, the PC was king and predictive coding was a fairly obscure term. Now, mobile devices, cloud, social media and desktop virtualization have relegated the traditional PC to the road to legacy status. And we all know the story of the tidal wave that is the predictive coding craze of 2013.

And this leads to the second and related lesson, which is the difficulty for dominant companies to stay innovative in such a fast-changing environment. This past week featured a lot of commentary from business and technology pundits, mostly making fairly obvious points about Microsoft missing the boat on smart phones, tablets and the Vista and Windows 8 debacles. But in terms of the bigger picture, I like the analysis from Nobel prize-winning economist Paul Krugman, who summoned wisdom from 14th Century North African philosopher Ibn Khaldun:

“One insight (Khaldun) had, based on the history of his native North Africa, was that there was a rhythm to the rise and fall of dynasties. Desert tribesmen, he argued, always have more courage and social cohesion than settled, civilized folk, so every once in a while they will sweep in and conquer lands whose rulers have become corrupt and complacent. They create a new dynasty — and, over time, become corrupt and complacent themselves, ready to be overrun by a new set of barbarians.

I don’t think it’s much of a stretch to apply this story to Microsoft, a company that did so well with its operating-system monopoly that it lost focus, while Apple — still wandering in the wilderness after all those years — was alert to new opportunities. And so the barbarians swept in from the desert.”

And I think it’s even less of stretch to apply this story to the eDiscovery software industry. For instance, in speaking to a couple of eDiscovery executives last week, they lamented that a dominant review tool his company relies on, had in their opinion become “long in the tooth” with the executives of that software provider no longer very accessible. Another leading eDiscovery software vendor recently launched a major upgrade to their flagship product resulting in palpable user exodus as the new version was much more complex, with a brand new interface that fell flat. Basically straight out of the Windows 8 playbook.  Not be outdone in its loss of focus, a similar and also market leading company now supports, by my count, at least 12 different products and at least 5 different markets.

And I think this trend of disruption is accentuated in the eDiscovery field because even the dominant players do not have several million in idle funds for research and development into cutting-edge technologies that will not produce meaningful revenue in the near term. Instead, they have to answer to investors of various stripes who demand that quarterly revenue numbers and positive near term cash flow are met. It’s the classic innovators dilemma.

What this means for key buyers of eDiscovery software is that they should be open to change and consider avoiding lock-in with seemingly dominate vendors who could only be months away from being displaced by the barbarians from the desert.

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July 16, 2013 · 6:48 PM

Highlights from Amazon’s Cloud eDiscovery and Search Webinar

Recently, Amazon Web Services (AWS) hosted a first of its kind webinar by a major cloud provider addressing the topics of eDiscovery and enterprise search. The webinar showcased solutions that allow organizations to quickly search, identify and act upon distributed data, whether it resides within the enterprise or within the AWS cloud. Vikram Garlapati, an Amazon Web Service Solutions Architect, lead off the discussion.

LTech CIO Eric Klotzko also presented. LTech is a cloud systems integrator and AWS partner supporting implementations of next-generation enterprise search and eDiscovery solutions that install and operate in virtual environments.Amazon Web Services2

Here are some of key highlights and takeaways:

• Vikram Garlapati outlined the key benefits of the cloud, including the provisioning of resources on demand as needed as opposed to incurring large capital outlays that must meet organizations’ estimated requirements over a multi-year period. This applies to enterprise software as well, where cloud-enabled eDiscovery software can be provisioned on a monthly, weekly or even daily basis as needed.
• The webinar featured a discussion featuring a compare and contrast between AWS’s Cloud Search and X1 Rapid Discovery. The presenters described AWS Cloud Search as a SaaS search engine geared toward the search of websites and static databases. Cloud Search is a solution popular with many developers in specific use cases. X1 Rapid Discovery operates in both a SaaS or IaaS (within the customers cloud instance) environment with an extensive feature set and an intuitive user interface. Vikram Garlapati stated that X1 supports “more of an enterprise scenario.”
• Eric Klotzo underscored the limitations of traditional enterprise search solutions that are hardware appliance-based or require an extensive manual on-site install process, thereby rendering such solutions as non-starters for deploying into and operating within virtualized cloud deployments.
• Eric also emphasized the importance of supporting hybrid cloud deployments as most cloud adoption involves an often long transitory period: “X1 can install into both the cloud and traditional on-premise locations, providing consolidated access to your data from a single pane of glass, which is very compelling.”

A recording of the AWS webinar is available here >

 

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Filed under Cloud Data, eDiscovery & Compliance, Enterprise eDiscovery, IaaS, Information Management, Preservation & Collection, Uncategorized, Virtualized Environment

June 17, 2013 · 12:02 PM

Amazon to Host Cloud Webinar on eDiscovery and Enterprise Search

Amazon Web Services2On June 27, Amazon Web Services (AWS) will be hosting a first of its kind webinar by a major cloud provider addressing the topics of eDiscovery and enterprise search.  Per AWS, the webinar will explore solutions that allow organizations to quickly search, identify and act upon distributed data, whether it resides within the enterprise or within the AWS cloud. Vikram Garlapati, an Amazon Web Service Solutions Architect, will lead off the discussion. This is the first time, to our knowledge, that Amazon will be publically addressing eDiscovery in the cloud and featuring a solution like X1 and also the first time they will be featuring a third party enterprise search solution to enable search within the IaaS cloud.

While SaaS hosting of eDiscovery services and some limited enterprise search capabilities by a vendor from their own servers is not new, this webinar will effectively be addressing a very different topic: deploying search solutions for eDiscovery and business productivity into an organizations’ public cloud instance where their data resides. This allows instant and lightning fast indexing, searching, and review of that data in place without having to first export that data out of its native cloud environment.

Also presenting will be LTech CIO Eric Klotzko.  LTech is a cloud systems integrator and AWS partner who is a major proponent of next-generation enterprise search and eDiscovery solutions that install and operate in virtual environments.  Eric will underscore the limitations of traditional enterprise search solutions that are hardware appliance-based or require an extensive manual on-site install process, thereby rendering such solutions as non-starters for deploying into and operating within virtualized cloud deployments.

This is a compelling, very timely topic that impacts the overall enablement and adoption of the cloud. As I blogged about previously, Federal Court Magistrate Judge Andrew Peck of the New York Southern District recently weighed in on public comments on eDiscovery in the cloud. 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.

Having just visited Amazon Web Services headquarters office and meeting with several key senior managers, it is clear this issue is a priority for AWS. 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.

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 enable a far more rapid adoption of cloud computing.

Please stay tuned for more exciting developments in this next frontier of eDiscovery and enterprise search.

A recording of the webinar is available here >

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