Tag Archives: Investigations

October 4, 2022 · 9:49 AM

Flawed Collection Methods Prevent TAR and Other Applications of Analytics on Social Media Evidence

By John Patzakis

Every litigator and eDiscovery practitioner is aware of the critical importance of analytics as a tool to support their cases. AI-driven analytics supercharges compliance investigations, data security, privacy audits, and Technology Assisted Review (TAR) of documents, emails, social media and other web-based items. AI machine learning employs mathematical models to assess enormous datasets to gain deep insights into key information. This enables the identification of discrete and hidden patterns in thousands of emails, social media posts and other electronic files to categorize and cluster documents by concepts, content, or topic.

However, it is important to understand that such a powerful capability requires the extracted text and metadata of the subject documents, emails and social media posts. So when examiners resort to screenshots, including flat file PDF image captures, this prevents the use of game-changing analytics in your case. Screenshots do not natively preserve the subject text or metadata and are useless if fed into analytics engines. This is a major disconnect with many eDiscovery practitioners who may not fully understand that by utilizing print screen, they are forfeiting their clients’ ability to utilize otherwise game-changing analytics on the social media and other web-based data they are collecting.

Bobby Malhotra, eDiscovery team co-lead at Munger Tolles highlighted this point in a recent webinar addressing the importance of native file collection for social media evidence: “If you are on a matter that is going to be very data intensive in terms of collecting voluminous amounts of data from social media sites, and you are going to need to mine through that data to understand what happened and get the relevant context (with an AI engine) the only way to really do that is to collect the full text and metadata, and so, screenshots will not suffice.” Malhotra emphasized that this is a “really critical point regarding the analytics process as a lot of people don’t think about that.”

In fact, not only will screenshots omit text and metadata, the screenshot will create a false record if introduced into the review and analytics workflow as the metadata of the screenshot itself will be completely different that the metadata of the original native object. For these reasons, it is important under an attorney’s duty of competency related to eDiscovery technology, to understand the implications of not collecting social media and web based evidence in native format, and strongly consider utilizing best practices technology to properly collect and preserve this critical source of evidence.

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Filed under Authentication, Best Practices, Data Audit, eDiscovery & Compliance, ESI, law firm, Preservation & Collection, Social Media Investigations, Social Media Metadata

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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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August 5, 2014 · 9:01 AM

Social Discovery: An Interview With Howard Williamson

This week’s blog is something new for X1 – a Q & A with Howard Williamson, the General Manager for X1’s market leading Social Discovery product.  Howard is an experienced digital forensics expert and began his career in law enforcement, which gives him a unique perspective on the practice of social discovery.  I had the pleasure of interviewing Howard this week on what is a very hot topic – social discovery.

Why Social Discovery?

Howard:  I remember back in the mid-1990’s there was a real feeling of excitement around digital forensics.  It was the cutting edge of the forensics field and the work was really fun.  Social media is now what digital forensics was in the mid to late 1990s – it’s the cutting edge of where investigation and intelligence is right now.  The work is fun because there are lots of challenges; the fun part is taking the practice from good to great.  That is what attracted me to the opportunity at X1 – because X1 Social Discovery can make the practice great because the product addresses the challenges of defensibly collecting a high volume, diverse data set like social media.

How does the law enforcement background complement this role?

Howard:  Ultimately, the goal of social discovery is to collect data in a manner that allows it to be used in criminal or civil litigation.  Knowing how that process works is critical.  The law enforcement background gives that experience of defensible collection across many different types of digital evidence.  And, on the criminal side of things, the standards of defensibility are quite high, so carrying that over to the civil side means that X1 will always meet high authenticity standards.  I bring that high bar from the digital forensics world to this brave new world of social media.

What’s new about this practice?
Howard:  The nice thing about now versus the mid-1990s is that we are now using purpose-built tools like X1 Social Discovery rather than co-opting system administration and network tools like we did in the early days of computer forensics.  That makes the Modern evidenceprocess more efficient and more complete.
Rather than using a sledgehammer to put a nail in, we are using a hammer.  The tool is built specifically for social discovery and therefore makes the practice more efficient.  Whereas in the early days of digital forensics, collection procedures where often made up on the fly, with Social Discovery, the approach is much more structured and systematic.  At X1, with our experience, we are certainly able to think and react on the fly to new challenges, but with a purpose-built tool, we can do so much more efficiently.  And, in the eDiscovery world, efficiency and defensibility are two very important things.

Are you seeing social discovery specialists pop up? 

Howard:  What we are seeing is that digital forensics professionals and intelligence professionals are implementing social discovery into their processes and procedures.  There are not “specialists” in social media; rather, the social discovery tool allows more people to collect this type of data as part of a broader job.  They are also doing things like mobile forensics and other digital forensics.  Thus, X1 Social Discovery has become an important tool in their toolkit.  The tool actually makes it easier to bring social media content into the collection because the professional doesn’t have to dive deep into things like mobile operating systems.  It becomes easier to be an expert in social collection because the product makes it simple to collect and analyze.

Do you think that Social discovery is a mainstream practice now?

Howard:  It absolutely is.  The evidence of that is our business.  X1 has nearly 500 paid install sites and nearly 4,000 end users conducting social discovery.  These users got ahead of the curve and have social media integrated into their processes.  The growth opportunity is still huge because it is inevitable that case law will force everyone to take social media more seriously, in the way that the Enron case put a spotlight on electronic discovery in general.  Law enforcement got the importance of social media evidence early on.  Even though a more typically cautious industry, police departments see that social media is a critical form of evidence and have built it into collection processes.  This is how most areas of forensics have evolved.   There is an attitude that, if it’s good enough for criminal law, it’s good enough for civil court.  That is part of what’s exciting for X1 – we have a great base of law enforcement customers putting the product through the paces.  X1 Social Discovery is truly battle-tested and no other solution works quite as well.  We are nicely positioned as the social discovery leader in a mainstream market with high growth potential.

What should we look for in the next year of social discovery?

Howard:  I would expect to see the big social networks continue to gain traction.  I don’t foresee a new behemoth social network to challenge the popularity of Facebook and Twitter.  From an app perspective, self-destructing messaging looks to remain popular as privacy becomes more of a concern.  Forensics will play a large role in determining whether those messages are truly destroyed or actually discoverable.

X1 will continue to build out connectors to more and more social networks and improve reporting and deliverables.  There will be more ability to analyze the data within the investigation platform.   What X1 wants to enable is people to do their jobs within a given workflow.  Some users will want to collect and review social media directly within X1, and the tools enables them to do that.  Others have examiners collect the data, but then move to a review tool where litigators can look at it.

Big thanks to Howard Williamson for sharing his time with us.  If you have questions about social discovery, please contact us at info@x1.com for more information.

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Catch Howard’s lecture at HTCIA’s Annual Conference, Tuesday, August 26, where he will cover Social Media Collection and Review >

 

 

 

 

 

 

 

 

 

 

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March 18, 2014 · 8:53 AM

Federal Government Agencies Face Information Management Challenges, Too

by Barry Murphy

Many moons ago, one of my first projects as an analyst with Forrester Research was to find the answer to a seemingly simple question: what is the industry standard for storing new types of electronic information such as X-rays and other images?  The client was a government agency that needed to store these records long-term and anticipated potentially needing to produce them in court many years in the future.  fed image 2As such, the agency needed to know how to store and find these records.  The answer proved to be anything but simple – in reality, the answer was that there was no “standard” for storing this new type of content.  My investigation into the topic led me to find this new market called eDiscovery and the rest is history.

The experience was interesting because it was my first foray into working with the Federal government.  I went into the experience with the assumption that Federal agencies would somehow be more advanced in their information management efforts.  Records management, after all, was (and still is) very important in government.  But, government agencies are just like other organizations – struggling to keep up with exploding volumes of digital information, under the gun to respond to information requests (whether it is in response to Congressional inquiries, regulatory requests, or litigation), and dealing with the needs for more modern IT infrastructure elements like Virtual Desktop Infrastructure (VDI).

The only difference between government agencies and other organizations is that agencies may be under even more stringent rules for complying with investigations and for dealing with digital information management.  President Obama’s Managing Government Records directive mandates that agencies manage electronic information as stringently as paper records have traditionally been managed.  Agencies are under even more of a microscope than corporations, yet face the same information management challenges.  Information assets are scattered across email, file systems, disparate SharePoint sites, and Cloud-based repositories.  In addition, some agencies adopt newer IT infrastructure elements such as virtualization and cloud computing to stay relevant.  For example, the Department of Energy deployed a virtual desktop infrastructure (VDI) in order to enable worker mobility (Source: Zurier, Steve. Agencies Deploy VDI with an Eye Toward BYOD. Fed Tech Magazine, March 18, 2013). VDI allows agencies to implement initiatives like BYOD while maintaining top-notch security.

Keeping up with modern IT infrastructure, while simultaneously responding to thousands of information requests each year – whether it is in response to Congressional inquiries, regulatory requests, or litigation – is a challenge.  Before assuming that government agencies have the process under control, consider this: according to Deloitte’s Seventh Annual Benchmarking Study of Electronic Discovery Practices for Government Agencies, only 59% of respondents believed their agencies were effective in deploying eDiscovery capabilities compared to 73% in the previous year (Source: Deloitte’s Seventh Annual Benchmarking Study of Electronic Discovery Practices for Government Agencies, Spring 2013).

Why the drop in confidence?  Part of the reason is that traditional search and eDiscovery products fail to effectively support agencies’ IT environments in a way that creates a true solution.  Rather, traditional products have agencies creating centralized eDiscovery labs that require copying information from various systems to a central eDiscovery location.  This is both time-consuming and expensive.  To learn how to address information management challenges in federal agencies, click here to download a whitepaper that outlines the critical problem, its legal compliance implications, and compelling solutions that help agencies develop built-in search and eDiscovery capabilities that reduce costs and improve operational productivity.

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November 29, 2012 · 9:57 AM

Plaintiff Claims Physical Injuries Made Worse by Cold Weather, Then Goes Snow Skiing

Earlier this month a New York Appellate court ordered the complete disclosure of a personal injury Plaintiff’s Facebook account.  In Richards v Hertz Corp., 2012 WL 5503841 —N.Y. Supp. 2d—, (NY AD 2d 2012, November 14, 2012) the Plaintiff claimed that her injuries from an automobile accident impaired her ability to participate in sporting activities and caused her to suffer pain that was exacerbated in cold weather. However, in the course of investigating the claim, the Defendant identified publically available images on the Plaintiff’s Facebook page “depicting [plaintiff] on skis in the snow,” (i.e. not only a sporting activity but in cold weather) and subsequently served a discovery demand requesting all her status reports, email, photos, and videos posted on her account since the date of the accident.

The Plaintiff objected to the request and ultimately a court motion was brought to resolve the discovery dispute. Initially, the trial court only directed that the injured plaintiff send defendants a copy of “every photo on Facebook” evidencing the injured plaintiff “participating in a sporting activity.” However, The Defendants appealed the order and the appellate court viewed the trial court’s order as too narrow, finding that defendants demonstrated that the injured Plaintiff’s profile contained an image that was “probative” of the issue as to the extent of her injuries, and finding in turn that “other portions of her Facebook profile may contain further evidence relevant to that issue.”

The appellate court ruled that defendant made “a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”

Regular readers of this blog will note that there is nothing new here as we have covered many similar recent cases with this type of fact pattern and outcome. But it is notable that such cases are becoming very routine. Also, it should be very clear by now that any law firm defending or prosecuting personal injury claims – as well as their hired eDiscovery consultants — should be investigating social media sites for sources evidence as a matter of course. As attorney John Browning pointed out earlier on this blog, any attorney who fails to do so may be violating their ethical duty of competence.

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