Tag Archives: case law

March 13, 2024 · 2:06 PM

Microsoft 365 Modern Attachments Pose Significant eDiscovery Challenges and Risk

By John Patzakis

In their excellent publication, 2023 eDiscovery Case Law in Review, Winston and Strawn, LLP, one of the top law firms in the US, highlights the challenges legal and eDiscovery professionals face with modern attachments. Modern attachments, also known as hyperlinks, are URL pointers that link to files or emails stored in another location. They are commonly found in Microsoft 365 Mail and Teams.

Winston and Strawn reports that “[r]equesting parties are increasingly sophisticated about this issue given the proliferation of Microsoft 365…and thus we have noted an uptick in requesting parties demanding that linked attachments be produced along with transmittal emails—in essence demanding that traditional email families be assembled from these pieces.” In re StubHub Refund Litig., 2023 WL 3092972 (N.D. Cal. April 25, 2023) is a case cited by the authors as a recent decision requiring the production of modern attachments in discovery.

The one area I disagree with in the report is its view that without investing in expensive services and Microsoft Premium licensing it may be very challenging and burdensome to identify and collect modern attachments. If you rely on Microsoft Purview for eDiscovery compliance and information governance, you must upgrade to expensive premium licensing that can add up to tens of millions of dollars in additional expense for larger enterprises. And even then, there are significant throughput and defensibility challenges.

eDiscovery service providers have stepped into the mix to provide manual services to address MS 365 challenges. But throwing services at the problem is disruptive, inefficient, and expensive as well.

X1 provides a different approach. X1 Enterprise Collect provides full support for modern attachments in MS Mail and in Teams. X1 is the only solution we and our partners are aware of that supports the search and collection of modern attachments in MS 365 without the need for a Premium (E5) license or additional manual services. This is because X1 Enterprise Collect does not operate by simply making bulk calls to the MS Graph API, like most eDiscovery tools, which also require a premium license to collect the key data such as modern attachments. X1 employs a targeted, custodian-based approach that minimizes 365 API calls, and does not rely on the MS Search Index, which has been demonstrated to be untrustworthy and with limited throughput. X1’s approach enables a very scalable, defensible, and robust data collection at speeds 10x that of other approaches.

The X1 Enterprise Collect Platform is available now from X1 and its global channel network in the cloud and on-premise. 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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August 31, 2016 · 8:01 AM

Hundreds of Thousands of Legal Cases Estimated to Address Social Media in 2016

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 last 12 month period ending August 26, 2016 — where evidence from social networking sites played a sigsocial-media-courtsnificant role. The initial search returned over 14,000 results. That is far too many to review manually, but through random sampling to eliminate duplicates and de minimis entries — defined as cases with merely cursory or passing mentions of social media sites — we counted over 9,500 cases accessible through Westlaw. This represents over a 50 percent increase from 2015.

And as only a very small number of cases — approximately one percent of all filed cases — involve a published decision or brief that we can access online, it is safe to assume that hundreds of thousands more cases involved social media evidence during this time period. Additionally, these cases do not reflect the presumably many hundreds of thousands of more instances where social media evidence was relevant to a corporate or law enforcement investigation yet did not evolve into actual litigation. Even so, this limited survey is an important metric establishing the ubiquitous nature of social media evidence, its unequivocal and compelling importance, and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.

The cases were generally split evenly between criminal and civil matters. The civil matters often involved personal injury/insurance claims, employment cases, family law disputes, and copyright/intellectual property. The following are a brief synopsis of some notable cases from the survey:

US v. Brown (D.C. No. 3-13-cr-00037-001) (3rd Circuit August 25, 2016). The opening line in the Federal Appellate Court’s opinion reads: “The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence—a prerequisite to admissibility at trial.” The court goes on to rule that social media is not self-authenticating but must be authenticated through extrinsic or circumstantial evidence under Federal Rule of Evidence 901. I have previously addressed this issue concerning utilizing circumstantial evidence to authenticate social media evidence under Rule 901 and how social media investigation software is instrumental for that purpose.

Stewart v. State of Iowa (No. 14-0583) (C.A. Iowa, August 17 2016). Defendant brought a motion for mistrial after it was discovered (post-trial) through key Facebook evidence that several jurors appeared to be associated with the key witness, despite those jurors’ denials during voir dire. However, the court disallowed the screenshots of the Facebook pages as lacking proper authentication and denied the motion for mistrial. This case underscores the necessity of a timely and proper social media investigation (not mere screen shots), as well as the general importance of conducting social media due diligence on prospective and empaneled jurors.

State of Louisiana v. Demontre Smith, (La. Court of Appeals, April 20, 2016) In yet another court decision illustrating why software that supports best practices is needed to properly collect and preserve social media evidence, the Louisiana appellate court, 4th Circuit, issued a written opinion in a felony criminal case disallowing key social media evidence due to a lack of authenticity. Under cross-examination, the police officer, who offered the evidence in the form of screen shots, conceded that she lacked any corroborating circumstantial evidence to support the authentication of the social media posts. The appellate court ultimately ruled: “We find the social media posts the state seeks to introduce at trial were not properly authenticated, as the state presented no evidence in order to carry its burden at the hearing.”

Xiong vs. Knight Transportation, (D.C. No. 1:12-CV-01546-RBJ) (D. Colo. July 27, 2016). This case arose out of a personal injury from a major rollover traffic accident and illustrates the importance of performing a diligent and timely social media evidence investigation. The jury awarded the Plaintiff $832,000, finding that she incurred severe pain from her injuries, which impacted her social life and daily activities. Post-trial, a paralegal for the defense counsel found a litany of Facebook evidence apparently showing the Plaintiff taking a trip to Las Vegas, visiting nightclubs, attending a wedding and smiling happily with friends at restaurants. Despite this newly discovered Facebook and Facebook-derived evidence, the district court denied Knight Transportation’s motion, finding that “the new (Facebook) evidence could have been discovered before trial and Knight offered no justification for its failure to develop it earlier.”

In addition to case law, another metric reflecting the industry’s standardization of social media evidence collection is the sheer volume of sophisticated customers that have now adopted X1 Social Discovery. Over 400 eDiscovery and computer forensics services firms have at least one paid copy of X1 Social Discovery. I cannot think of a single service provider in the eDiscovery space that performs at least some ESI collection services that does not have at least one paid X1 Social license. Social media evidence collection is now a standard practice in many law enforcement matters as well.

So, if you are one of the minority of digital investigative or eDiscovery professionals who have not adopted X1 Social Discovery, please contact us for a demo today.

 

 

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January 26, 2015 · 1:06 PM

Social Media More Relevant than Ever — Hundreds of Thousands of Legal Cases Estimated to Address Social Media in 2014

by John Patzakis

Law Journal for webAs 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 2014 where evidence from social networking sites played a significant role. The initial search returned over 10,000 results. That is far too many to review manually, but through random sampling to eliminate duplicates and de minimis entries — defined as cases with merely cursory or passing mentions of social media sites — we counted over 5,500 cases accessible through Westlaw. This represents a 3x increase over 2013.

And as only a very small number of cases — approximately one percent of all filed cases — involve a published decision or brief that we can access online, it is safe to assume that hundreds 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 2009 (that I saw), as they are now just working their way through the discovery motion/appeals process. Finally, these cases do not reflect the presumably many hundreds of thousands of more instances where social media evidence was relevant to a corporate or law enforcement investigation 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 unequivocal and compelling importance, and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.

As succinctly noted by The Florida Bar Association in its publication, Florida Law Journal, “SOCIAL MEDIA EVIDENCE: WHAT YOU CAN’T USE WON’T HELP YOU” (2014) Volume 88, No. 1:

“Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations– can immeasurably help their clients resolve disputes. If not properly researched, preserved, and authenticated, the best social media evidence is worthless.”

And:

“Social networking sites have grown from a few thousand users to more than a billion. These sites have become a preferred form of electronic communication, surpassing email in 2009. As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state’s population. Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.”

This is why several other Bar Associations have now weighed in to assert that a lawyer’s duty of competence requires addressing social media evidence. New Hampshire Bar Association published Opinion 2012-13/05 providing that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” The Pennsylvania Bar weighed in with a similar opinion, and the ABA recently published Comment [8] to Model Rule 1.1, which provides that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

And we are of course seeing this explosive trend in the adaptation of X1 Social Discovery. Over 250 eDiscovery and computer forensics services firms have at least one paid copy of X1 Social Discovery. I can think of no greater validation of a software or process than this mass and widespread adaption by these early adopters, who are of course the experts on best practices and litigation technology trends.

After the adoption by eDiscovery consultants comes law firms, and we count over 100 as paid customers, ranging from several dozen AMLaw 100 firms to small five attorney operations. And the strong adoption of law enforcement and government regulatory agencies is also a compelling indicator, where we count over 120 such agencies worldwide as customers.

But clearly the results from our Westlaw survey and the opinions of the Florida, New Hampshire, Pennsylvania and American Bar Associations speak for themselves. And, if that is not enough, you can see from an earlier blog post just how costly it can be to manually collect, preserve, and review social media evidence.  So, if you are one of the soon to become minority of digital investigative or eDiscovery professionals who have not adopted X1 Social Discovery, please contact us for a demo today.

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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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May 8, 2012 · 9:14 AM

Social Media Case Law Update: Volume of Cases Accelerating

Recently our survey of published case law from 2010 and 2011 identified 689 cases involving social media evidence for that time period.  While these results exceeded our expectations, that pace is actually rapidly accelerating in 2012. For this past April alone, a quick tally identifies 61 cases where social media evidence played a key role. We will have a mid-year report in a few months, but it appears 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 in April 2012.

The following are brief synopses of three of the more notable social media cases from April:

Blandv. Roberts, 2012 WL 1428198 (E.D.  VA, Apr. 24, 2012)  

This case is notable in that it extensively litigated the implications of “liking” specific items on Facebook.  In this situation the Hampton, Virginia Sheriff’s Office employed Bland and his co-workers, under Sheriff B.J.  Roberts. Roberts faced a contested election and Bland and his cohorts backed the challenger Jim Adams, going so far as to “like” Adam’s Facebook page. As it turned out, the plaintiffs “liked” the wrong horse. Roberts won the election, and he subsequently fired Bland and the other Adams-backers. The Sheriff justified the terminations on cost-cutting grounds, but plaintiffs argued that their termination violated their First Amendment rights, as Roberts was aware that the plaintiffs’ “liked” Adam’s Facebook page, which plaintiff’s asserted to be protected speech. The court ultimately determined that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection and thus the termination was lawful.

From our perspective, the ultimate outcome of Bland v. Roberts is not so much the point as is plaintiffs’ subtle activity on Facebook representing substantive facts of the case.  The act of liking a Facebook entry can be an important piece of evidence in a wide variety of litigation and investigation scenarios. Just to identify a few possible examples, it can constitute evidence toward a party’s knowledge of a particular fact, or the extent of trademark infringement or publication of defamatory material, or identify relevant witnesses in a case. This case illustrates why it is important to collect and preserve all available information on Facebook and other social media sites in a thorough manner with best-practices technology specifically designed for litigation purposes.

People v. Harris, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)

In this case, the defendant faced charges of disorderly conduct after marching onto the Brooklyn Bridge as a participant in the Occupy Wall Street protests.  The New York District Attorney’s Office subpoenaed Twitter, Inc., seeking user information and Tweets from a particular time period for the Twitter account @destructuremal—the account allegedly used by the defendant.  The defendant filed a motion to quash the subpoena.

In denying the defendant’s motion, the court relied heavily on the public nature of Twitter and its terms of service, which establish that users have no expectation of privacy and no proprietary interest in their Tweets. The court noted that the terms of service state that by submitting a post or displaying content, a user has granted Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”  Thus, the court reasoned, “defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interest” in them.  In assessing the Plaintiff’s privacy rights, the court again relied on Twitter’s Terms of Service, which clearly inform users that their information will be viewable by others and which specifically state that “[w]hat you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”

Loporcaro v. City of New York and Perfetto Contracting Company,  35 Misc.3d 1209(A), (N.Y. Sup. Ct. Apr. 9, 2012)

This is yet another serious personal injury claim where the claimant’s public Facebook postings contradicted their assertions of serious injury. Plaintiff claimed permanent disability from two knee injuries while on the job as a firefighter, seeking redress against Perfetto Contracting Company, Inc., alleging defective road conditions caused his injury. However, his public Facebook postings suggested that he continued to maintain an active lifestyle. This prompted the court to grant the defense’s motion to compel production of the Plaintiff’s full Facebook account, ruling as follows:

“When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public. Clearly, our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material, and it is impossible to determine at this juncture whether any such disclosures may prove relevant to rebut plaintiffs’ claims regarding, e.g., the permanent effects of the subject injury. Since it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery.”

Earlier this year we covered the case of Tompkins vs. Detroit Metropolitan Airport, which also highlighted the importance of systematic search of public Facebook as standard procedure for nearly every type of criminal and civil litigation investigation.

We will have an update in about four weeks for the social case law published in May, so stay tuned.

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