Social Media E-Discovery: Process & Technology

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Social Media E-Discovery:

Process & Technology

Presented by:

John Patzakis, X1 Discovery, Inc.

Don Swanson, Five Star Legal and Compliance Systems, Inc.

Hosted by LexisNexis® and X1 Discovery

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Social Media E-Discovery: Process & Technology

Today’s Presenters

Don Swanson

President

Five Star Legal and

Compliance Systems, Inc.

John Patzakis

CEO

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Social Media E-Discovery: Process & Technology

1. The scope of social media?

2. Is it useful to a case?

3. How do I get it/authenticate it?

4. What are the courts saying about key legal issues

related to social media?

5. What are technical best practices for social media

eDiscovery?

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• 800,000,000 registered users

• Registration: open to people 13 and older

• Purpose: general, updates

• 300,000,000 registered users • Registration: open to all ages

• Purpose: general, micro-blogging, updates

• 120,000,000 registered users

• Registration: open to people 18 and older

• Purpose: business and professional networking Top 3 Most Active World-Wide Social Networking Websites

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• Legal Database Search: in last 22 months, 674 federal

and state court decisions have addressed social media

evidence in published opinions

• Myspace (326), Facebook (262 cases), Twitter (49)

Linkedin (37)

• Cases Involving Defamation, Trademark Infringement,

Corporate Securities, Personal Injury, Criminal and

Employment Matters now turn on Social Media Evidence

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Preservation

Regulatory

• Example, Financial Industry

• FINRA Notice 10-6 and Notice 11-39 (SEA Rule 17a4; NASD Rule 3110;

http://www.iterasi.com/2011/finra-notification-11-39-social-media-website-requirements

• “Corporations must have a social media policy.” –Ben Kerschberg, Forbes.com, 9/28/11

Litigation

• Arteria Property v. Universal Funding • Torres v. Lexington Insurance

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Social Media Spoliation is Real

• Lester v. Allied Concrete Company (2011)

• Attorney Sanctioned $522,000 by Virginia State court

• Told client to “clean up” his Facebook with incriminating

photos

• Torres v. Lexington Insurance Company (2006)

• Plaintiff's personal website photos removed while litigation

was pending

• Court finds spoliation: bars plaintiff from

introducing any evidence of mental anguish

supporting her claims.

• Preservation demand sent by defense

counsel

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Process For Obtaining Social Media Discovery

Rejected Approach:

Crispin v. Christian Audigier (2010)

• Defendants directly served subpoenas on Facebook

• Plaintiff successfully quashed, citing Stored

Communications Act.

Successful Approach:

Zimmerman v. Weis Markets, Inc. (2011)

McMillen v. Hummingbird Speedway, Inc. (2010)

• Court compelled production of plaintiff’s Facebook

user name and password

• Publically available information provided good cause

basis

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Authentication of Social Media Evidence

- No Unique Laws of Evidence.

- FRE 901(a) Governs

- State of Connecticut vs. Eleck (2011)

• Authorship of Facebook messages disputed

• Court ruled that simple printout of the Facebook items

failed to establish foundation

• Court cites cases where ESI authenticated by their

unique metadata and other circumstantial evidence that

provide “identifying characteristics.”

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Example Facebook Metadata Fields

Field

Description

created_time When a post or message on Facebook

was created

thread_id Unique identifier of a message thread

recipients All recipients of a message by name

post_id Unique id number of a wall post

application medium used to post a Facebook item (i.e., from

an from iPhone)

user_id Unique id of the item poster/author

account_id Unique id of a users account

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Limitations of Facebook Download Your Information (DYI) Feature

Omitted Data:

1. Various contributed or re-posted content to other accounts.

(i.e. pictures on friend’s wall).

-De facto deleted data recovery

2. Photos of the custodian posted and tagged by other users

3. Nearly all Metadata Fields

No authentication or chain of custody

• MD5 hashing, read-only preservation

• Case management

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Form of Production For Social Media

• Social media evidence is considered

electronically stored information under FRCP

• See, EEOC v. Simply Storage

,

• FRCP rule 34(b): ESI production “in a form or

forms in which it is ordinarily maintained or in a

form or forms that are reasonably usable”

unless the requesting party specifies a different

format at the time of the request.

• Need to produce social media evidence in

native file format with all metadata intact

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Griffin v. Maryland

“The design and purpose of social media sites make them especially

fertile ground for statements involving observations of events

surrounding us, statements regarding how we feel, our plans and

motives, and our feelings (emotional and physical)[.]”

“It should now be a matter of professional competence for attorneys

to take the time to investigate social networking sites.” (citing

references)

of (and Refusal to Use) Social Media, 12 DEL. L. REV. 179 (2011).

-

Duty of Competency

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Don Swanson

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Social Media: Collection, Review and Production

Print

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Print

Screen

Screen Capture

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Forensic

Analysis

Facebook Download

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Conclusion

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Conclusion