Tag Archives: X1 Social Discovery

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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September 27, 2016 · 10:02 AM

LTN: Social Media Evidence Even More Important than email and “Every Litigator” Needs to Address It

legaltech-news-thumbBrent Burney, a top eDiscovery tech writer of Legaltech News, recently penned a detailed product review of X1 Social Discovery after his extensive testing of the software. (Social Media: A Different Type of E-Discovery Collection, Legaltech News, September 2016). The verdict on X1 Social Discovery is glowing, but more on that in bit. Burney also provides very remarkable general commentary on how social media and other web-based evidence is essential for every litigation matter, noting that “email does not hold a flicker of a candle to what people post, state, admit and display in social media.” In emphasizing the critical importance of social media and other web-based evidence, Burney notes that addressing this evidentiary treasure trove is essential for all types and sizes of litigation matters.

Consistent to that point, there is a clear dramatic increase in legal and compliance cases involving social media evidence. Top global law firm Gibson Dunn recently reported that “the use of social media continues to proliferate in business and social contexts, and that its importance is increasing in litigation, the number of cases focusing on the discovery of social media continued to skyrocket.” Undoubtedly, this is  why Burney declares that “every litigator should include (X1 Social Discovery) in their technical tool belt,” and that X1 Social Discovery is “necessary for the smallest domestic issue all the way up to the largest civil litigation matter.” Burney bases his opinion on both the critical importance of social media evidence, and his verdict on the effectiveness of X1 Social Discovery, which he lauds as featuring an interface that “is impressive and logical” and providing “the ideal method” to address social media evidence for court purposes.

From a legal commentary standpoint, two relevant implications of the LTN article stand out. First, the article represents important peer review, publication and validation of X1 Social Discovery under the Daubert Standard, which includes those factors, among others, as a framework for judges to determine whether scientific or other technical evidence is admissible in federal court.

Secondly, this article reinforces the view of numerous legal experts and key Bar Association ethics opinions, asserting that a lawyer’s duty of competence requires addressing social media evidence. New Hampshire Bar Association’s oft cited ethics opinion states 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 New York State Bar similarly weighed in noting that “A lawyer has a duty to understand the benefits and risks and ethical implications associated with social media, including its use as a … means to research and investigate matters.” And the America Bar Association 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.”

The broader point in Burney’s article is that X1 Social Discovery is enabling technology that provides the requisite feasibility for law firms, consultants, and other practitioners to transition from just talking about social media discovery to establishing it as a standard practice.  With the right software, social media collections for eDiscovery matters and law enforcement investigations can be performed in a very scalable, efficient and highly accurate process. Instead of requiring hours to manually review and collect a public Facebook account, X1 Social Discovery can collect all the data in minutes into an instantly searchable and reviewable format.

So as with any form of digital investigation, feasibility (as well as professional competence) often depends on utilizing the right technology for the job.  As law firms, law enforcement, eDiscovery service providers and private investigators all work social discovery investigations into standard operating procedures, it is critical that best practices technology is incorporated to get the job done. This important LTN review is an emphatic punctuation of this necessity.

 

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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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May 3, 2016 · 2:54 PM

Court Bars Key Facebook Evidence in form of Screenshots for Lack of Authentication

Last week, 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. (State of Louisiana v. Demontre Smith, La. Court of Appeals, April 20, 2016)  The prosecution alleged that Demontre Smith committed aggravated assault with a firearm when he pointed a gun at a rival and pulled the trigger, only to have the weapon misfire.

facebook_website_screenshot-300x155In seeking to introduce key Facebook evidence in support of the case, a New Orleans police
officer testified that a Facebook post depicted Smith holding a revolver and warning the victim “that his mom needs to get life insurance on him.” Smith’s alleged post also stated, “Just cocked me a new one, b—-. I’m done talking. See you tomorrow. Better be ready. Broke ass mama better have insurance.”

Under cross-examination, the NOPD 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 defense subsequently filed a motion to exclude the evidence, which was denied by the trial court. However, the appellate court reversed the trial court, writing in its opinion: “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 on Mr. Smith’s motion to exclude.” The Appellate court noted that such evidence could include testimony or computer data obtained from the purported creator of such posts, or by demonstrating that specific information or identifying characteristics contained within such posts could reasonably authenticate its original creator.

“Accordingly, we find the proper inquiry is whether the proponent has ‘adduced sufficient evidence to support a finding that the proffered evidence is what it is claimed to be,” the appellate court wrote, adding that sufficient proof will vary from case to case, and the proof of authentication may be direct or circumstantial.

Louisiana v. Smith is yet another illustration why software that supports best practices is needed to properly collect and preserve social media evidence. Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. However, in many cases, such as in Louisiana vs. Smith, that option is not available. In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would 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. (emphasis added) (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 and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts 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.

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December 9, 2014 · 8:10 AM

Social Media Evidence Law Update: Numerous Recent Decisions Disallow Social Media Screen Prints as Evidence

by John Patzakis

In recent months, courts in several reported decisions have excluded evidence in the form of screen captures of social media. These court decisions greatly impacted the overall matter, including directly resulting in the overturning of a criminal conviction. scales-justice-no-printThis is a very important trend as many criminal investigators and litigation support practitioners continue to rely on print screen without realizing the now torrent level of case law disallowing such evidence.

In the most recent example, in Moroccanoil vs. Marc Anthony Cosmetics, — F.Supp.3d —- (2014) a federal district court explicitly ruled that Facebook screenshots were inadmissible as the defendant in a trademark infringement action merely offered the screenshots without supporting circumstantial information, which is difficult to obtain when mere screenshots are relied upon. The Moroccanoil court cited Internet Specialties W., Inc. v. ISPWest, 2006 WL 4568796 which in that case ruled: “Defendant’s argument, that [web pages] could be ‘authenticated’ by the person who went to the website and printed out the home page, is unavailing.” The Moroccanoil court applied the same rule to Facebook screenshots.

In the criminal context, in United States vs. Vayner, 2014 WL 4942227 (C.A. 2 (N.Y.)), A US Federal Appellate Court, Second Circuit, recently overturned a criminal conviction upon finding that the lower court erroneously admitted a screenshot of the defendant’s alleged social media profile due to improper authentication. Earlier this year, in Commonwealth v. Banas, 2014 WL 1096140 a Massachusetts Appellate Court also ruled that a screen print of Facebook post submitted by the prosecution in a criminal case to be inadmissible on authentication grounds.

The courts that produced these decisions are very influential and these decisions will impact standards for, and the scrutiny of, all social media evidence collection in criminal and civil matters nationwide.

(As a side note, these recent decisions and other key issues involving social media evidence will be discussed at length in a December 16 webinar featuring computer forensics expert Craig Ball and Reed Smith eDiscovery counsel Patrick Burke: A Practical Approach to Social Media Discovery. The top-line speakers will cover the importance of social media discovery in today’s cases, recent challenges and best practices. The event is one week away as of this writing but — as a testament to this compelling and timely topic — we have nearly 600 registrants and seats are limited, so I encourage you to register now.)

The cases cited above and many others like them illustrate that social media provides torrential amounts of evidence potentially relevant to litigation matters, with courts routinely facing proffers of data preserved from various social media websites. One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available circumstantial evidence in order to present the best case possible for the authenticity of social media evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts and general web pages in a thorough manner with best-practices technology specifically designed for litigation purposes.  For instance, there are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries, or a combination of them contrasted with other entries, can provide unique circumstantial evidence that can establish foundational proof of authorship. (We identify the nearly two dozen fields of unique Twitter metadata in our white paper available here).

Additionally, when an examiner merely relies on print screen, they also severely limit the scope and thoroughness of the social media and internet collection. Employing more automated means, such as X1 Social Discovery, enables the examiner to quickly collect entire web pages and publically available social media accounts, which can be hundreds of pages long. This allows the examiner to build a much stronger case for authentication by building timelines, drawing more connections between witnesses and their various posts, collecting more collaborating metadata, and a litany of other means to build a compelling circumstantial case to authenticate the social media or web page evidence in question.

So in sum, you can either have your cake and eat it too with X1, or incur much higher costs, overlook mountains of potentially case-winning evidence, arguably violate your ethical duty of competence, and face evidentiary challenges in court with print screen. Seems like an easy decision.

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