Tag Archives: X1 Social Discovery

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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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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