Tag Archives: social media evidence

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 15, 2011 · 9:10 PM

Facebook Spoliation Costs Lawyer $522,000; Ends His Legal Career

PenaltyIn what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. A copy of the final order in Lester v. Allied Concrete Company is available here.

If Murray had initiated a proper legal hold concerning his client’s social media evidence instead of directing blatant spoliation, he would be a lot wealthier and likely kept his job. Instead, he apparently quit his position as managing partner of the largest personal injury firm in Virginia and, according to local press reports, he no longer practices law.

The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouse’s fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Murray instructed his client through his assistant to “clean up” his Facebook account. “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”

This case reflects a trend we see based on anecdotal data points where a minority of legal and eDiscovery practitioners have not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence.

The attorneys we speak with are telling us that social media evidence is relevant to nearly every case they handle and the savvy ones are using social media evidence to win their cases. And as we recently noted, since 2010 social media evidence played a key role in 675 different cases with published decisions reflecting such involvement and in presumably tens of thousands more cases not involving published decisions. Those numbers will only increase as social media networks grow even more popular.

However, I was struck by one recent conversation where an eDiscovery consultant had not yet included social media data source in their standard investigation checklist. To be fair, there has not been best practices technology available to enable scalable, mainstream social media eDiscovery until recently, which impacts standard processes.

But just as the Virginia state court judge saw no difference between Facebook postings and other “traditional” electronically stored information, neither should anyone in the legal and investigative fields, especially since the software needed to get the job done is now available.

UPDATE: Here is copy of the previous court ruling determining sanctions were in order. The final order set the amount.

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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 25, 2011 · 7:25 PM

Limitations of Facebook “Download Your Information” Feature for eDiscovery Preservation

In October 2010, Facebook provided a “Download Your Information” (“DYI”) feature to provide a means for a user to download to their computer data they have posted to their own accounts, including messages to and from friends.  It is built on top of Facebook’s Graph application programming interface and creates a compressed ZIP file.  “You really will have a copy of all your information in one place,” said David Recordon, Facebook’s senior open programs manager upon the announcement of the feature. “We built this product as something that’s useful for people, not for other developers.”  But is DYI useful or defensible for eDiscovery?

In making that assessment it is important to understand that the following key information is not included in Facebook’s DYI:

  1. Certain contributed content to other friend’s accounts. If an account owner/custodian were to post a picture to a friend’s wall, that post and associated comments would not be collected by DYI.
  2. Photos of the custodian posted to other users’ wall. Facebook allows a feature for users to tag photos to identify their friends who appear in a picture they are posting.  Unless that picture also appears on the custodian’s wall, it will not be collected by DYI, even though such photos are available to the custodian in the “photos of you” feature.
  3. Most Metadata Fields. Facebook contains over 20 unique metadata fields, all of which can be very important as substantive evidence or as information that helps establish an evidentiary foundation, which is particularly important for social media evidence.  DYI items include 2 metadata fields displayed in plain text.

As Facebook DYI is not designed to be an eDiscovery tool, it will not generate hash values of the information or provide a defensible chain of custody. KPMG, a leading eDiscovery service provider recently published a blog post constituting negative peer review of Facebook DYI, noting that Facebook DYI “was not conceived to be a forensic collection tool. The only original timestamps that it preserves are in the HTML files which can be easily modified.” 

As always, legal and eDiscovery professionals should test and validate their methodologies they employ to preserve and collect evidence and be aware of the emergence of best practices technologies in the industry that are subject to positive peer review.

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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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