Category Archives: Preservation & Collection

July 25, 2023 · 11:21 AM

Court Decision in Lubrizol vs. IBM Provides Important Guidance on MS Teams Discovery

By John Patzakis

Recently, a federal district court in Ohio issued a ruling concerning an eDiscovery dispute involving both Teams and Slack, Lubrizol Corp. v. IBM Corp., No. 1:21-CV-00870-DAR (N.D. Ohio May 15, 2023). This decision is important as it provides and serves as a template and guidepost on how to collect and produce messages from MS Teams, a challenge which many litigants are struggling with today.

This case involves a breach of contract claim where plaintiff Lubrizol corporation, a major chemical manufacturer, purchased an SAP ERP system, and then hired IBM to implement the enterprise software. The project eventually went off the rails and now the parties are in litigation fighting over eDiscovery.

As you might imagine on an IT project like this, there’s a lot of evidence in Teams and also in Slack. Plaintiff Lubrizol wanted IBM to produce the entire channel of their messages if there was even a single relevant message within the channel. However, in its written opinion, the court determined that the production of an entire Slack or Teams channel, with only a few relevant messages within, would be overbroad per the rules of proportionality. IBM conversely took a counter position that was equally extreme, claiming that they only needed to produce the actual message that the keyword hit on without any context of the broader conversation around it. The court rejected this approach.

Eventually the plaintiff came back to the court with a proposed compromise, which the court agreed with and adopted as its final order as follows:

“IBM to produce: (1) the entirety of any Slack conversation containing 20 or fewer total messages that has at least one responsive message; and (2) the 10 messages preceding or following any responsive Slack message in a Slack channel containing more than 20 total messages. Within 28 days, Lubrizol shall do the same with respect to its Microsoft Teams messages.”

While this ruling is very instructive, many parties struggle with executing such a targeted collection and production effort. The problem with Teams discovery, as outlined in a previous post, is that most eDiscovery tools require parties to collect and export entire Teams channels, with the production format being very problematic due to no efficient ability to provide automated and targeted productions as the court outlines above.

The exception is X1. X1 Enterprise Collect provides, in our opinion, the industry’s best eDiscovery support for MS 365. And many independent eDiscovery, experts, agree. X1’s support for MS Teams is one example. Among the reasons why our MS Teams support stands out, is the ability to produce a specific number of preceding and subsequent messages for automated input into a review platform, all in context. See the screenshot below.

Winston & Strawn eDiscovery partner Bobby Malhotra notes the importance of this capability: “With the vast number of users and unyielding amount of data in collaboration applications such as Teams, having the ability to target and triage data by specific custodians and threads allows organizations to handle discovery in an efficient and pragmatic manner. X1 provides the unique ability to seamlessly collect and search across numerous web, collaboration, and social, data sources.”

X1 recently hosted a webinar demonstrating how to collect from MS Teams in an effective, defensible and proportional manner. You can watch it here on demand.

The X1 Enterprise Collect Platform is available now from X1 and its global channel network in the cloud, on-premise, and with our services available on-demand. For a demonstration of the X1 Enterprise Collect Platform, contact us at sales@x1.com. For more details on this innovative solution, please visit www.x1.com/x1-enterprise-collect-platform.

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July 12, 2023 · 11:47 AM

eDiscovery Journal Highlights X1’s Game Changing Support of MS 365

By John Patzakis

Greg Buckles of the eDJ, arguably the top independent eDiscovery industry analyst, penned an important article outlining X1’s support for MS 365 data sources within the X1 Enterprise Collect platform and how it even surpasses in many respects Microsoft’s own Premium Purview services. In his post, Buckles first listed X1’s “top level take-aways” as follows:

• X1’s Teams support targets individual custodians and specific messaging threads, displacing any need to mass download Teams chats and channels.
o X1 collects and searches Teams content directly without relying on the Microsoft Graph content search API, which has known gaps.
• X1 indexes, searches and processes Teams data in-place, removing any reliance on premium processing or supplemental services.
o Modern attachments are collected and searched in place and automated data formatting enables one-click upload into Relativity for review.
• Unified search and collection of on-premise and cloud data sources, including Teams, OneDrive, SharePoint, Mail, laptops and file-shares for an optimized workflow
o Provides True ECA and processing capabilities at the point of collection. Assess, process, and collect only what is needed, narrowing funnel at point of collection.

Buckles then notes that “archiving and enterprise search products like Autonomy IDOL struggled to deliver a ‘universal index’ for decades.” Similarly, Microsoft 365 “can struggle to meet the stringent eDiscovery/compliance requirements.” Specifically, Buckles noted that Microsoft Purview faces significant throughput limitations as documented by his own performance testing: “Past Purview advanced indexing performance testing for eDJ corporate clients resulted in limiting SLA’s to 1-3 full custodians per day.” Conversely, Buckles writes that “X1’s distributed index approach allows them to expand a user’s M365 sources to include desktops, file shares and 3rd party content such as Dropbox. It offloads much of the processing overhead to endpoint devices and avoids some of Purview Premium’s throughput limits for larger custodial matters.” As noted in the article, X1’s benchmark testing of 25 mailboxes in 4-8 hours and we have seen that scale in parallel.

Many customers report to us that Microsoft Purview Premium’s documented inability to timely handle anything other than small matters due to their 2GB per hour throughput limit (which X1 is not subject to due to our direct connection approach) is disqualifying for them. eDiscovery and investigation matters need to be addressed expediently. X1 can address a matter involving 100 custodians at 10GB of MS 365 data each within 24 hours (search, collection and export), while Microsoft Purview Premium, per Buckles’ performance testing and Microsoft’s own documentation, would take up to several weeks.

Additionally, Buckles’ generally referenced, including linking to Microsofts’ documentation, identifying other Purview Premium limitations such as not searching files and attachments over 150 MB, not addressing hidden mail folders, and not accessing files and emails without “compliance copies.” X1 is not subject to these limitations.

The X1 Enterprise Collect Platform is available now from X1 and its global channel network in the cloud, on-premise, and with our services available on-demand. For a demonstration of the X1 Enterprise Collect Platform, contact us at sales@x1.com. For more details on this innovative solution, please visit www.x1.com/x1-enterprise-collect-platform.

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Filed under Best Practices, Cloud Data, Corporations, ECA, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, MS Teams, OneDrive, Preservation & Collection, SharePoint

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June 13, 2023 · 10:14 AM

Law Firms Are Demanding Native, Post-Level Collection of Social Media Evidence to Support Standard Review and Analytics Workflows

By John Patzakis

Two months ago, X1 launched version 7 of our X1 Social Discovery social media and web collections solution. This major upgrade features a new cutting-edge Instagram connector, along with our revamped Facebook support, where all our users now have native post-level collection and parsing to ensure accuracy, key metadata collection, court authentication, and evidentiary completeness of the collected data. As stated by X1 CEO Larry Gill: “Nothing short of those capabilities is acceptable and that is why I can confidently say that X1 Social Discovery is the only solution in the industry capable of delivering all those requirements.”

Version 7 has been a huge success, with record sales seen since its release. In fact, in speaking recently with several attorneys at top law firms, it’s very clear both how important such native post-level collection is in order to support standard attorney review and data analytics workflows, and that there is a disconnect with some practitioners who are utilizing alternative web plug-in based screen shot generation tools that do not support these now basic but essential requirements.

It is very important to understand the unique ability of X1 Social Discovery to perform post-level native collection of each social media post. This means that the social media post is collected in its native format and parsed so that it has its own associated metadata, photos, indexed text and in-line comments. This allows for the individual Facebook or Instagram posts, Tweets, etc. to be searched, filtered, tagged, and exported individually at the post-level with all associated metadata and comments inline. The ability with X1 to tag, sort, authenticate (with individually associated hash values), and upload individual posts by up to thousands at a time without manual processing into an attorney review platform is essential for an efficient and scalable workflow. And X1 is the only solution that can deliver this critical functionality.

In contrast, the web plug-in tools generate flat file image PDFs as its final output. So, if there are 30 posts that are in a feed, a single monolithic image PDF will be generated as the collection output. These bulk screenshots are of very limited value as they are not collected in native format, retain no post-level metadata, and are not searchable (absent a secondary and inferior OCR process). This output is practically useless for a review platform (as the entire output is one object).

Additionally, as we all know, AI-based analytics is a game-changing capability that is now a standard feature of the leading eDiscovery review platforms. However, ESI must be properly collected in order to support such AI. Semantic AI engines ingest and analyze the extracted text and metadata of individual emails, electronic documents, social media posts and web pages. Only X1 Social Discovery collects full text & post-level metadata and performs and maintains the collection at the individual object-level, all of which is necessary to support upstream AI analysis. Using the web plug-in tools is a decision to not use AI on your case for social media and website evidence.

Another key differentiator is that X1 Social Discovery is a robust software application that can be installed on a computer, including virtual cloud servers. This enables X1 to take advantage of the full CPU and RAM resources available to address heavy workloads as needed with multi-threading capabilities. As a result, X1 can run multiple collections at the same time, auto-expand and auto-scroll across thousands of posts, and collect posts with thousands of comments. For instance, a web crawl collection, a Facebook collection, and a YouTube collection can be run at the same time. Data can be reviewed and analyzed immediately as it populates.

Further, social media collections often involve thousands of posts with hundreds of associated comments and multiple images. This requires adequate resources to perform auto-expanding and auto-scrolling of pages, comments, and images. X1’s architecture provides for such a scalable workflow.

In contrast, the web plug-in tools are web browser plug-ins that face very limiting performance ceilings and functionality constraints inherent to any such plug-in. Many users report limitations beyond capturing a few dozen posts at a time at best, with an inability to capture all comments when they number in the hundreds or numerous clustered images in thumbnail format. For this reason and many others, the web plug-in tools are generally considered a low market tool for one-off small collections.

Additionally, the legal evidentiary defensibility provided by X1 Social Discovery is in a class by itself. This is because X1 captures over a dozen unique item-level metadata fields, including the URL of the individual post (not bulk feed), User ID, Post ID, date stamps and other key metadata. Importantly, each post, which is an individual object, has its own hash value generated at the time of collection. So, when thousands of individual posts, YouTube videos, and web pages are collected into a case, and there is then a need to provide a subset of those items into a review platform or produced in discovery, the hash value and post-level metadata for each item remains intact.

The web plug-in tools only record general URLs of the bulk collection, a hash of the entire “all or nothing” bulk PDF export containing up to dozens of individual posts, with no individual hash values or metadata fields specific to any of those posts. There is an important distinction here between object-level metadata (i.e. each post) and metadata associated with the bulk feed image. If the web plug-in tools capture 50 posts in a single image feed, and the client may only want 4 of them moved into a review platform for further review, there is no way to do that except for taking secondary Snagit-type screenshots, rendering the chain of custody broken and the hash value inapplicable.

Finally, the court in Edwards v. Junior State of America Foundation, No. 4:19-CV-140-SDJ, (US Dist. CT, E.D. TX 2021), specifically ruled that only HTML or JSON social media collections are defined as “native file collection.” Flat PDFs are not.

To see this critical and unique functionality in X1 Social Discovery v7, please watch our product tour on-demand. Alternatively, we would welcome the opportunity to brief you and your colleagues directly. Please contact us to speak with a member of the X1 Team.

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April 24, 2023 · 3:56 PM

X1 Introduces Cutting-Edge Instagram Support with X1 Social Discovery Version 7

By Larry Gill

Since I joined the X1 team last year as CEO, I have made it my priority to double down on our support and expansion of our X1 Social Discovery solution. To that end, I am excited to announce that we have just launched version 7 of X1 Social Discovery, social media and web collections solution, which includes a new cutting-edge Instagram connector, along with our revamped Facebook support, where all our users now have native post-level collection and parsing to ensure accuracy, key metadata collection, court authentication, and evidentiary completeness of the collected data. Nothing short of those capabilities is acceptable and that is why I can confidently say that X1 Social Discovery is the only solution in the industry capable of delivering all those requirements.

Over the past year, I have spoken to many of our customers and prospects about what they need to support their social media eDiscovery collections and investigations. One thing that became clear: post-level native file collection for social media evidence, including Instagram, is essential.

Other tools simply provide bulk flat file screen shots of social media feeds, and are of very limited value, as they merely provide a screenshot PDF image file without searchable text or metadata, other than what is visible on the image itself. This does not meet the needs of attorneys and paralegals seeking to leverage and admit key social media and website evidence into their cases. For this reason, X1 has put in the work and R&D investment, and, as CEO, I am committed to doing so on an ongoing basis, so that our users would have native post-level collection and parsing as required.

X1 Social Discovery is the only solution to provide native file, post-level Instagram support, and in a manner that is fast and scalable. This enables the following top 5 key benefits for Instagram collections:

  1. Fast and Automated Instagram Feed Capture. X1 Social Discovery v7 captures hundreds of Instagram posts with assorted comments per hour. We have successfully captured several thousand posts in our testing, including individual posts that have hundreds of associated comments and replies. This level of performance is simply impossible with “web plug in” tools.
  2. Post-Level Collection, Filtering and Production. The ability to search, tag, sort, authenticate (with their own hash value), and produce individual Instagram posts with X1 is essential for an efficient and effective workflow. Other tools require “all or nothing” production & hash of the flat PDF output.
  3. Federated Search and Review. With X1, multiple Instagram, Facebook, Twitter, YouTube and web page collections can now be searched, sorted, and reviewed in a unified manner. No other tools on the market have an integrated review capability.
  4. Robust Post-Level Metadata Capture. X1 Captures over a dozen unique item-level metadata fields for an individual Instagram post. Other tools only record general URLs of the bulk collection, a hash of the entire “all or nothing” bulk PDF export containing up to hundreds of individual posts, with no individual hash values or metadata fields specific to any of those posts.
  5. Deep Integration with Relativity for Review. X1 custom-developed a Relativity .RAP file that enables social media data (now including Instagram) to be displayed natively – at the post-level — in full context in Relativity, the same as it appears in X1 Social Discovery. All metadata is overlayed, and the comments are kept in line and in context. Importantly, each Instagram post collected by X1 is treated as an individual record in Relativity, instead of the bulk export from other tools being a single record. This enables efficient review as well as robust data analytics of social media evidence in Relativity.

To see all these exciting new features in X1 Social Discovery v7, please watch our product tour on-demand. Alternatively, we would welcome the opportunity to brief you and your colleagues directly. Please contact us to speak with a member of the X1 Team.

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April 18, 2023 · 10:49 AM

Social Media Evidence Proves Essential in Recent High-Stakes Trademark Infringement Matters

By John Patzakis

Recent court decisions reflect how social media evidence can play an important role in establishing actual confusion in a trademark infringement lawsuit. With the rise of social media, businesses and individuals have been able to reach wider audiences and create their own brand identities. However, this has also led to an increase in trademark infringement cases, as individuals and companies attempt to profit from the goodwill and reputation of established brands. In these cases, social media evidence is often instrumental in establishing whether there is actual confusion among consumers, which is a crucial element in proving trademark infringement. Social media evidence can help establish actual confusion by demonstrating how consumers interact with the marks in question.

In addition to user interactions such as comments or hashtags, social media evidence can also include analytics data and other metrics. For example, businesses can use social media analytics tools to track how consumers are interacting with their content and whether there are any spikes or changes in user behavior when a competitor begins using a similar mark. This data can help demonstrate actual confusion among consumers.

To establish trademark infringement, a plaintiff must prove that a defendant’s use of a mark is “likely to cause confusion” with the plaintiff’s mark under Title 15 of the U.S. Code, Section 1125(a)(1)(A). Many plaintiffs have recently highlighted social media posts, including hashtags, to establish evidence of actual confusion, which further bolsters their claims.

In Hermes International v. Rothschild, t (S.D.N.Y. Feb. 2, 2023), the luxury brand Hermès filed a trademark infringement action against the defendant who created and sold “MetaBirkin” nonfungible tokens (NFTs). Hermès asserted that Rothschild’s NFTs infringed upon its famous Birkin handbags both in name and appearance. Hermès successfully defeated a summary judgment motion by introducing social media posts into evidence that allegedly reflected actual confusion from consumers, including posts that read:

“Finally an NFT my wife can get on board with! Would LOVE to get her this Birken [sic] for Christmas!”

“I need this Birkin for the wifey! Please whitelist me sir. #WAGMI #MetaBirkins”

“Birkin NFT is the future of fashion.”

Hermès ultimately prevailed on their claims at trial based upon this and other key evidence.

In Great Western Air LLC v. Cirrus Design Corp., (D. Nev. Jan. 6, 2023), a personal airplane manufacturer, Cirrus Aircraft, asserted trademark infringement against a private charter jet company, Cirrus Aviation. Cirrus Aircraft sought at trial to establish actual confusion by pointing to various social media posts that showed images of Cirrus Aircraft planes, but tagged Cirrus Aviation’s social media handle, or that had hashtags such as #cirrusaviation.

But social media evidence reflecting evidence of actual confusion cannot help your case if it is not properly authenticated. In S10 Entertainment & Media LLC v. Samsung Electronics Co. Ltd., (C.D. Cal. Feb. 14, 2023) Samsung successfully objected to the admission of social media evidence that the plaintiff sought to admit into evidence. Specifically, Samsung successfully excluded what the court opinion describes as “21 unauthenticated social media posts and messages from Twitter and Instagram that S10 Entertainment purports indicate actual confusion” including “an unauthenticated YouTube video (and related screenshots).”

The court ruled that if the plaintiff intended to introduce social media posts from third parties to demonstrate that those third parties were confused, it could not authenticate those posts because it “cannot even demonstrate that these comments are real people.” The plaintiff’s use of screen shots and other failures to use best practices to authenticate the social media evidence was very costly, and defendant Samsung prevailed at trial one month after the pre-trial evidentiary hearing.

Litigants in trademark and other intellectual property actions should both understand the treasure trove of key evidence social media feeds provides, while at the same time employing best practices to properly collect and authenticate this critical evidence source.

X1 Social Discovery is the only eDiscovery solution to provide post-level parsing for social media posts, which is essential for both scalable collection and evidentiary authentication. To learn more about this important functionality, please contact us for more information.

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