Tag Archives: Twitter

November 28, 2011 · 8:21 AM

Can Lawyers Be Disqualified by Merely Viewing a Linkedin Profile? The Implications of Indirect Social Media Communications and Legal Ethics Rules

With attorneys and their hired consultants routinely collecting social media evidence for investigation and eDiscovery purposes, it is important to be aware that such activity can generate various direct and indirect communications to the subject account owners.  Sending a Facebook “friend” or a LinkedIn “connect” request are obvious examples, but there are also less overt means of social media communications. For instance, if a hypothetical law firm named Smith & Wesson were to merely follow a witness on Twitter, the service will automatically email the witness with a notification that Smith & Wesson is now following her. Additionally, it is all too easy when viewing a Facebook page to inadvertently “like” an item or accidentally send a friend request through a single mouse click.  And if you simply view another’s Linkedin profile while logged into your own account, that person will often be notified that you viewed his or her profile page.  Ethical Implication

For lawyers and their hired consultants and investigators, all this can be very problematic considering legal ethics rules that strictly regulate communications with represented parties and even jurors connected to a case. Several local and state bar associations have issued legal ethics opinions discussing this issue specific to collecting social media evidence. On December 6, X1 Discovery hosted a live webinar to delve deeper into this topic with the esteemed Ralph Losey of Jackson Lewis as the featured speaker. Ralph is the lead eDiscovery partner at Jackson Lewis and the author of “The eDiscovery Team,” considered by many to be the best legal eDiscovery blog on the planet. You can register for the recorded version of this webinar at this link here. (One hour of ethics CLE credit will be available to California attorneys).

From our perspective, this critical concern involving indirect social media communications and legal ethics underscores the importance of employing best practices technology to search and collect social media evidence for investigative and eDiscovery purposes.  Collecting evidence in a manner that prevents, or at minimum, does not require that attorneys and their proxies directly or indirectly communicate with the subjects from whom they are collecting social media evidence is a core requirement for solutions that truly address investigative and eDiscovery requirements for social media. If user credentials to the social media account have been properly obtained, that is obviously ideal. However, in many instances lawyers must resort to searching and collecting publicly available information. In such situations, it is crucial that the law firm and/or its hired experts conduct such collections in the proper manner.

For instance, X1 Social Discovery software features public Facebook capture that can search and collect publicly available Facebook pages without directly or indirectly notifying the account holder. This is critical functionality for eDiscovery preservation. Additionally, X1 Social Discovery accesses and displays Facebook pages in read-only mode, preventing metadata alternation, inadvertent friend requests or “like” tagging through a simple slip of the mouse. X1 Social Discovery includes other features concerning Twitter and Linkedin that also prevent indirect communications while effectively collecting data from those sites. We will be highlighting those features in the next few weeks, but in the meantime, we hope you enjoy our webinar.

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November 9, 2011 · 11:26 AM

674 Published Cases Involving Social Media Evidence

Many in the legal and eDiscovery field cite the very illuminating research from the Duke Law Journal published in the spring 2011, which, based upon their search of the case law, identified nearly 300 federal court decisions through the end of 2009 that awarded e-discovery sanctions. This survey and others like it reinforce the sentiment that eDiscovery is crucial to nearly all litigation and internal investigation matters.

The work of the Duke Law Journal inspired us to search an online legal database of state and federal court decisions across the United States to identify the number of cases where evidence from social networking sites played a significant role. The numbers were quite an eye opener and exceeded even our high expectations.  From January 1, 2010 through November 1, 2011, 674 state and federal court cases with written decisions available online have involved social media evidence in some capacity.

The search was limited to the top four social networking sites and the tally came out as follows: Myspace (326 cases), Facebook (262), Twitter (49) LinkedIn (37). The numbers excluded results where the social networking site was either named as a party to the case or where such cases were cited as precedent.

Some quick analysis behind the numbers:

  • Sampling review indicates that a significant percentage if not the majority of the Myspace cases generally involved criminal matters.
  • While fewer in number, the Twitter and LinkedIn cases tended to involve higher stakes litigation such as corporate trade secret theft, trade libel, copyright, class action employment matters, and trademark infringement. (See e.g. AGENCE FRANCE PRESSE v. MOREL and Getty Images, In re Application of Chevron Corporation, Blayde v. Harrah’s Entertainment, Inc.)
  • Sampling review also suggests that simple printouts and screen captures or direct testimony of representatives from social media providers in criminal cases were the means used to obtain this evidence.
  • In several dozen cases the court addressed, and in several instances sustained, objections to the evidentiary authentication of social media evidence. This reaffirms that the authentication of social media evidence without best practices technology is a major concern.

This survey of course does not reflect the presumably exponentially more cases involving social media evidence but without a written opinion available online that reflects that involvement. Even so, these numbers are an important data point establishing the ubiquitous nature of social media evidence.

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October 17, 2011 · 7:14 PM

Social Media: Highly Relevant, Clearly Discoverable but No Workable eDiscovery Workflow – Until Now

As reflected by extensive recent discussion in the legal and eDiscovery community in recent months (see links to examples here, here, here, and here) it is clear we all understand social media evidence is relevant to just about any type of civil and criminal case and thus must be routinely addressed in discovery. However, despite the obvious necessity for social media eDiscovery, legal and investigative professionals have lacked an effective means to effectively address social media evidence in their workflow in the same manner as email and files.

The situation reminds me of when I first entered the eDiscovery field as a co-founder of Guidance Software back in 1999. Everyone knew circa 1998 the importance of all the evidence residing on computers with those Windows 95 operating systems to their criminal cases and for civil discovery. But collecting and analyzing that evidence at that time meant that you either tortured yourself with DOS tools to image, restore and somehow search those hard drives or simply booted up live evidence and rummaged through Windows Explorer. Once Windows-based computer forensics tools like EnCase and later FTK became the new paradigm, the computer forensics field, and soon thereafter eDiscovery, took off and became a standard practice.

Today, instead of DOS tools, investigators, eDiscovery consultants and paralegals at major law firms tell us they are mostly scouring Facebook.com and Twitter.com and creating page-by-page screen captures. This agonizing exercise can take hours to capture each available screen for a single Facebook account. And as addressed by recent court decisions, screen captures are not best practices when establishing a proper chain of custody and seeking to authenticate the evidence at trial.

So this week, we are launching X1 Social Discovery to enable a far more efficient, cost-effective and defensible process to address social media evidence. In a nutshell, X1 Social Discovery provides two core benefits. First, it is very fast, comprehensive and intuitive, collecting and indexing tens of thousands of potentially relevant social media items per hour and searching them with the instantaneous and patented X1 Search technology all in a very simple user interface. Secondly, it provides best practices for the preservation and authentication of social media, generating hash values for all collected items, collecting and preserving dozens of unique social media metadata fields and documenting a clear and concise chain of custody from collection through export to load file or native format.

X1 Social Discovery has been several years in the making. The foundation is the award-winning X1 Search platform recently recognized by Network World as the best productivity search platform in the industry, beating out Google Desktop and Windows 7. X1 Social Discovery’s features and intelligence is borne through a perfect combination of years of research and development in the technical collection and search of social media by Idealab technologists and an experienced eDiscovery product development team.

In sum, we believe X1 Social Discovery represents enabling technology that addresses a critical need with an order of magnitude solution — One that allows for eDiscovery and legal professionals to not only reactively but proactively harvest the vast ocean of social media evidence in a rapid, defensible and cost-effective manner. We hope you agree and look forward to your comments, suggestions and continued support.

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October 6, 2011 · 10:38 AM

Key Twitter Metadata Fields Lawyers and eDiscovery Professionals Need to Be Aware of

As discussed in our previous post, authentication of social media evidence can present significant challenges when you collect by screen shots, printouts or raw html feeds from an archive tool. This is just one reason why social media data must be properly collected, preserved, searched and produced in a manner consistent with best practices. When social media is collected with a proper chain of custody and all associated metadata is preserved, authenticity can be much easier to establish. As an example, the following are key metadata fields for individual Twitter items that provide important information to establish authenticity of the tweet, if properly collected and preserved:

Metadata Field Description
created_at UTC timestamp for tweet creation
user_id The ID of the poster of a tweet
handle User’s screen name (different from user name)
retweet_id The post ID of a retweet
retweet_user The username of the user who retweeted
Reply Indicates if this tweet is a reply
direct_message Indicates if this tweet is a direct message
Hashtags List of all hashtags in the tweet
Description Up to 160 characters describing the tweet
geo_enabled If the user has enabled geo-location (optional)
Place Geo-location from where user tweeted from
Coordinates Geo-location coordinates where tweet sent
in_reply_to_user_id unique id for the user that replied
profile_image_url location to a user’s avatar file
recipient_id unique id of direct message recipient
recipient_screen_name display name of direct message sender
screen_name display name for a user
sender_id unique id of direct message sender
Source application used to Tweet or direct message(i.e., from an iPhone or specific Twitter app)
time_zone a user’s time zone
utc_offset time between user’s time zone and UTC time
follow_request_sent Indicates request to follow the user
Truncated If the post is truncated due to excessive length

Any one or combination of these fields can be key circumstantial data to authenticate a single or group of social media items. US Federal Rule of Evidence 901(b)(4) provides that a party can authenticate electronically stored information (“ESI”) with circumstantial evidence that reflects the “contents, substance, internal patterns, or other distinctive characteristics” of the evidence. As outlined in our white paper, many cases have applied Rule 901(b)(4) to metadata associated with emails and other ESI. But you will not get all this key metadata from a printout, screen capture, or even most compliance archive tools. Best practices technology specifically designed to collect, preserve, search and produce social media for eDiscovery is required.

Facebook and Linkedin items have their own unique, but generally comparable, metadata. Stay tuned for our posting of key Facebook metadata in a few days.

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September 28, 2011 · 6:53 PM

Authentication of Social Media Evidence

With over 800 million Facebook users and 200 million people with Twitter accounts, evidence from social media sites can be relevant to just about every litigation dispute and investigation matter. Social media evidence is widely discoverable and generally not subject to privacy constraints when established to be relevant to a case, particularly when that data is held by a party to litigation or even a key witness. However recent court decisions reflect that the main pressing concern for attorneys, eDiscovery practitioners and investigators is the authentication of social media data for admission into evidence in court.

We have devoted a whitepaper to this important topic (download it here) with some good feedback. The bottom line is that absent  uncontroverted and cooperative witness testimony, lawyers must turn to circumstantial evidence to help establish an evidentiary foundation for social media evidence. This is where utilizing best practices technology that 1) establishes an effective chain of custody of the collected social media; and 2) captures all available metadata without alteration is essential.

Metadata is particularly important as under US Federal Rule of Evidence 901(b)(4) evidence, including electronic data, can be authenticated through circumstantial evidence that reflects the “contents, substance, internal patterns, or other distinctive characteristics” of the proffered evidence. And social media items contain a wealth of key meta data that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question. I will be posting more specifics concerning social media metadata and its potential importance in court in a few days.

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