Tag Archives: X1

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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July 21, 2016 · 8:29 AM

Recent Court Decisions, Key Industry Report Reveal Broken eDiscovery Collection Processes

 

While the eDiscovery industry has seen notable advancements and gained efficiencies in widespread adoption of hosted document review and supporting technologies, the same is not yet true for the collection and preservation of Electronically Stored Information (ESI). Leading industry research firm Gartner notes in a recent Market Guide report that eDiscovery collection and preservation process “especially when involving device collection, can be intrusive, time consuming and costly..”  And some recent court decisions imposing sanctions on corporate litigants who failed to meet their ESI preservation obligations are symptomatic of these pain points.

Earlier this year, a Magistrate judge imposed spoliation sanctions for destruction of ESI in a commercial dispute, where the Plaintiff made no effort to preserve such emails — even after it sent a letter to the defendant threatening litigation. (Matthew Enter., Inc. v. Chrysler Grp. LLC, 2016 WL 2957133 (N.D. Cal. May 23, 2016). The court, finding that the defendant suffered substantial prejudice by the loss of potentially relevant ESI, imposed severe evidentiary sanctions under Rule 37(e)(1), including allowing the defense to use the fact of spoliation to rebut testimony from the plaintiff’s witnesses. The court also awarded reasonable attorney’s fees incurred by the defendant in bringing the motion.  And in another case this year,  Internmatch v. Nxtbigthing, LLC, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016), a U.S. District Court imposed similar sanctions based upon the corporate defendant’s suspect preservation efforts.

In her June 30, 2016 “Market Guide for E-Discovery Solutions,” Gartner eDiscovery analyst Jie Zhang notes that “searching across multiple and hybrid data repositories becomes more onerous and leads to overinvestment.” Given that most enterprises’ retention policy efforts are often unenforced or immature, there is often a glut of content to search through. Accordingly, almost every e-discovery request is different and often time pressured, as IT typically handles e-discovery requests in an ad hoc manner.” As such, Jie observes that “In order to guarantee data identification and collection quality, IT tends to err on the side of being overly inclusive in data preservation approach. This could result in too much legal hold or preservation. For example, it is not rare for an organization to put all mailboxes on legal hold or put them on legal hold over time (due to multiple holds and never-released holds). Being put on hold not only adds to IT management overhead and prime storage cost, but also makes any archive or records management difficult.”

The common theme between the cited cases and Zhang’s analysis is a perceived infeasibility of systemized and efficient enterprise eDiscovery collection process, causing legal and IT executives to wring their hands over the resulting disruption and expense of ESI collection. In some situations, the corporate litigant opts to roll the dice with non-compliance — a clearly misguided and faulty cost benefit analysis.

What is needed is an effective, scalable and systemized ESI collection process that makes enterprise eDiscovery collection much more feasible. More advanced enterprise class technology, such as X1 Distributed Discovery, can accomplish system-wide searches that are narrowly tailored to collect only potentially relevant information in a legally defensible manner. This process is better, faster and dramatically less expensive than other methods currently employed.

With X1 Distributed Discovery (X1DD), parties can perform targeted search and collection of the ESI of thousands of endpoints over the internal network without disrupting operations. The search results are returned in minutes, not weeks, and thus can be highly granular and iterative, based upon multiple keywords, date ranges, file types, or other parameters. This approach typically reduces the eDiscovery collection and processing costs by at least one order of magnitude (90%), thereby bringing much needed feasibility to enterprise-wide eDiscovery collection that can save organizations millions while improving compliance.

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May 19, 2016 · 8:43 AM

Changing the Game for Rule 26(f) Meet and Confer Efforts with Pre-Collection Early Data Assessment

One of the most important provisions of the Federal Rules of Civil Procedure that impact eDiscovery is Rule 26(f), which requires the parties’ counsel to “meet and confer” in Meet and Conferadvance of the pre-trial scheduling conference on key discovery matters, including the preservation, disclosure and exchange of potentially relevant electronically stored information (ESI).  With the risks and costs associated with eDiscovery, this early meeting of counsel is a critically important means to manage and control the cost of eDiscovery, and to prevent the failure to preserve relevant ESI.

A key authority on the Rule 26(f) eDiscovery topics to be addressed is the “Suggested Protocol for Discovery of Electronically Stored Information,” provided by Magistrate Judge Paul W. Grimm and his joint bar-court committee. Under Section 8 of the Model Protocol, the topics to be discussed at the Rule 26(f) conference include: “Search methodologies for retrieving or reviewing ESI such as identification of the systems to be searched;” and “the use of key word searches, with an agreement on the words or terms to be searched” and “limitations on the time frame of ESI to be searched; limitations on the fields or document types to be searched.”

However, Rule 26(f) conferences occur early on in the litigation, typically within weeks of the case’s filing. As such, attorneys representing enterprises are essentially flying blind at this pre-collection stage, without any real visibility into the potentially relevant ESI across an organization. This is especially true in regard to unstructured, distributed data, which is invariably the majority of ESI that is ultimately collected in a given matter.

Ideally, an effective early data assessment (EDA) capability can enable counsel to set reasonable discovery limits and ultimately process, host, review and produce less ESI.  Counsel can further use EDA to gather key information, develop a litigation budget, and better manage litigation deadlines. EDA also can foster cooperation and proportionality in discovery by informing the parties early in the process about where relevant ESI is located and what ESI is significant to the case.

The problem is any keyword protocols are mostly guesswork at the early stage of litigation, as under current eDiscovery practices, the costly and time consuming step of actual data collection must occur before pre-processing EDA can take place. When you hear eDiscovery practitioners talk about EDA, they are invariably speaking of a post-collection, pre-review process. But without requisite pre-collection visibility into distributed ESI, counsel typically resort to directing broad collection efforts, resulting in much greater costs, burden and delays.

What is clearly needed is the ability to perform pre-collection early data assessment, instead of EDA after the costly, time consuming and disruptive collection phase.  X1 Distributed Discovery (X1DD) offers a game-changing new approach to the traditional eDiscovery model.  X1DD enables enterprises to quickly and easily search across thousands of distributed endpoints from a central location.  This allows organizations to easily perform unified complex searches across content, metadata, or both and obtain full results in minutes, enabling true pre-collection EDA with live keyword analysis and distributed processing and collection in parallel at the custodian level. This dramatically shortens the identification/collection process by weeks if not months, curtails processing and review costs from not over-collecting data, and provides confidence to the legal team with a highly transparent, consistent and systemized process.

A recent webinar featuring Duff & Phelps Managing Director and 20-year eDiscovery and computer forensics veteran Erik Laykin included a live demonstration of X1DD searching across 20 distributed endpoints in a manner of seconds. In reaction to this demonstration, Laykin commented “the ability to instantaneously search for keywords across the enterprise for a small or large group of custodians is in its own right a killer application. This particular feature gives you instantaneous answers to one of the key questions folks have been wrestling with for quite some time.”

You can now view a recording of last month’s webinar: eDiscovery Collection: Existing Challenges and a Game Changing Solution, which features an overview of the existing broken state of enterprise eDiscovery collection, culminating with a demonstration of X1 Distributed Discovery. The recorded demo will help illustrate how pre-collection EDA can greatly strengthen counsel’s approach to eDiscovery collection and meet and confer processes.

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September 21, 2015 · 8:51 AM

X1 Wins Key Honor at VMworld: 3rd Major Award for 2015

By John Patzakis and Barry Murphy

X1 continues to garner widespread acclaim in 2015 for providing enterprise end-users with the fastest, easiest-to-use, cloud-enabled enterprise search software from any device through X1 Search Virtual. The experts in this domain recognize that X1 is providing a game-changing capability in this new era of enterprise virtualization and mobility, while traditional enterprise search tools are simply not built to support the new paradigm.

Earlier this month, a panel of judges comprised of recognized experts and editors chosen by TechTarget’sSearchServerVirtualization.com, awarded X1 “Best of VMworld 2015” Best of VMworld_500Awards Finalist in the Desktop Virtualization and End-User Computing Category. The judges evaluated 153 nominated products on display at VMworld 2015, and based the winners on innovation, value, performance, reliability, and ease of use.

X1 SearchTM Mobile brings X1’s award-winning user interface for desktop search to the mobile device, providing lightning-fast and secure search of email and files while on the go. This means users will no longer settle for the limited, slow and inconsistent “Exchange-only” searches of current smartphones. X1 Search Mobile enables full email (including archived emails) and desktop search from the mobile device, keeping workers productive no matter where they are. Notably, X1 was the only software provider at VMworld 2015 offering enterprise search for virtual environments with real time access from any device. High level discussions with Gartner and other key industry experts and executives confirm that X1 is far ahead of the pack in delivering this unique and disruptive capability.

How disruptive? According to Jack Madden, noted analyst and blogger on enterprise mobility and end-user computing, in a live video interview, “You know what else I like about [X1 Search Mobile] is it can …take the place of enterprise file synch and share products, because that is all your files in the background, and not to mention all your inbox (emails and attachments) and they’re right there, mobile enabled, with a policy around them. There is a lot there.”

This capability is made possible by X1’s virtual “always-on” index enabling access to your files from any device, which is the main use case for Box, Dropbox, and other EFSS tools. But with X1, you also access your emails from the same interface, with built in X1 search and an overall better user experience. And best of, this can all be accomplished through an enterprise’s existing on-premise virtual or private cloud infrastructure.

The 2015 recognition began in April, when Gartner named X1 a Cool Vendor in EndPoint Computing. According to Gartner’s report, “X1 can improve end-user experience on hosted virtual desktops by maintaining Windows and Outlook searches, which are often lost in the transition away from traditional PCs.” Platforms like VDI and DaaS hold great promise, but the user experience with VDI is often sub-optimal, thereby hindering widespread adoption. X1’s recognition by Gartner as a Cool Vendor validates our innovation in cloud and virtual environments, as well as our commitment to provide a stellar end-user experience.

And for the third award, PC Magazine published a very strong product review for X1 Search (version 8).  X1 won the desktop search category with the prestigious “PC Mag Editor’s Choice” designation. Some key takeaway quotes:

  • Basic setup for the program couldn’t be simpler
  • The program’s search capability is impressive, both for its ease of use and its sophisticated features
  • If you can take advantage of X1 Search’s ability to extend its reach to SharePoint or cloud-based email and Box, or make use of its ability to build much more sophisticated search phrases than Lookeen can handle, X1 Search is the obvious choice.

To get three major awards in one year is obviously gratifying and validates that the approach to support enterprise virtualization and mobility through a stellar search experience is a winning strategy to support our customers as they rapidly embrace the next generation desktop. We look forward to continuing to deliver an unmatched search experience across data anywhere, on any device.

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August 28, 2015 · 11:49 AM

Mobile Productivity Now a Reality Thanks to X1 Search Mobile

X1 is exhibiting at VMworld this week and it is impossible to avoid the theme of mobility.  There is a whole track at the conference devoted to “the mobile enterprise.”  Given that the workforce is mobile more than ever and using multiple devices in any location, workers need access to applications and information on-the-go.  It is not surprising, therefore, that folks coming by the X1 booth are intrigued by X1 SearchTM Mobile.  IDC estimates that, by 2020, mobile workers will make up 72.3% of the workforce – the need for mobile productivity is and will be very real.

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X1 SearchTM Mobile enables an instantaneous and secure search of millions of documents and years of email from a smartphone, a game-changing capability for today’s mobile workforce. It brings X1’s award-winning user interface to the mobile device, providing lightning-fast and precise search of email and files while on the go. No longer will users need to settle for the limited, slow and inconsistent “Exchange-only” searches of current smartphones. X1 Search Mobile enables full email (including archived emails and PSTs) and desktop search from the mobile device, keeping workers productive no matter where they are.

In today’s “always on” environment, X1 Search Mobile allows users to quickly and effortlessly find and take action on the information they are looking for regardless of where it is and when they might be looking for it.  Imagine being at the airport, with your laptop packed away and a client calls with questions on a proposal you sent.  You don’t have time to pull out your laptop, fire it up, and pull up the proposal.  With X1 Search Mobile, though, you can quickly find that proposal right your phone, pull it up within seconds, and answer the important questions your client has.

The first question that many have when it comes to mobile information access is, “what about security?  Will this be an access control nightmare?”  With X1 Search Mobile, the answer is easy – this is a search application built for the enterprise.  It integrates with leading Enterprise Mobile Management (EMM) tools such as AirWatch and Good Technologies so that security is built in from the ground up.  In fact, by using the EMM security layer, X1 Search Mobile can help organizations enforce BYOD policies.  For example, if an organization wants users to only do corporate email in the email app of the EMM provider, X1 Search Mobile can enable a post-search action that launches the EMM email app versus the native email client of the phone.

With X1 Search Mobile, true mobile productivity is possible.  Workers can have search precision light-years beyond what current smartphones offer natively, with a single-pane-of-glass view across email, desktop files, SharePoint and other enterprise content on the mobile device.  Within this user interface, workers will experience fast-as-you-type search, full-fidelity preview of attachments with hit highlighting and infinite scrolling of search results (no need to “continue search on server”).

This approach to mobile search is ground-breaking and fills a huge productivity void in today’s mobile enterprise.  X1 Search Mobile provides an intuitive user interface to email that goes well beyond the native search of the mobile device while also providing access to desktop files, SharePoint, and other critical sources of content. X1 enables true mobile productivity.  While other search vendors offer a vague mobile SDK so that consulting companies can build search apps, X1 offers the real thing – a mobile search application that gives users access to their critical information and enables mobile productivity.  Learn more and see the product in action here.

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