Category Archives: Social Media Investigations

July 9, 2019 · 9:36 AM

Social Media Statements: Key Evidence and Often Exceptions to the Hearsay Rule

By John Patzakis

Here is a quick legal evidence quiz: Identify the three distinct hearsay exceptions in the following Tweet:

Accident 5

 

The first exception would be under Federal Rule of Evidence 803(2):

“Rule 803. Exceptions to the Rule Against Hearsay: . . . (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”

Pretty clear here. The four OMGs are a good indication. So no one can argue that the phrase “OMG” never has any legal consequence.

The second exception would be under FRE 803(1): “Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”

And if the witness some time later did not recall details of the incident (two words: Vegas, hangover), the statement could be introduced as a recorded recollection under 803(5).

Another key hearsay exception are statements offered as evidence of the then state of mind of the declarant. While YouTube is known for cat videos, Twitter and Facebook are in large part a platform for statements like this:

Happy Tweet

 

In other words, to quote FRE 803(3): “Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)”

While social media is a great place to find out what Kim Kardashian and Justin Bieber are thinking or feeling on a given day, the state of mind of a party or witness is a common issue in many legal matters. (See Gordon v. T.G.R. Logistics, Inc. (D. Wy. May 10, 2017) (Court orders production of entire Facebook Account history as relevant to mental and emotional state of Plaintiff)).

And finally, arguably the most compelling social media evidence stems from the propensity to self-incriminate oneself on Twitter, otherwise known as a Statement Against Interest under FRE 804(b)(3).  This takes multiple forms, including flat out admissions of liability, or previous statements that contradict or otherwise impugn the integrity of a declarant. For instance:

Trump tweet

 

The bottom line is that social media provides a treasure trove of evidence that also tends to fall under evidentiary hearsay exceptions, unlike other forms of out of court statements.

But if you are offering social media evidence under a hearsay exception in court, that would likely mean you have an uncooperative or otherwise unavailable party who authored the social media statement in question. In such cases, the authenticity of the post must be established through circumstantial evidence since direct testimony is not available, and you will need the right software to both identify such evidence and properly collect it utilizing best practices to ensure its admissibility in court.

1 Comment

Filed under Authentication, Best Practices, Case Law, Case Study, eDiscovery, Social Media Investigations

May 1, 2019 · 1:11 PM

90 Percent of Law Firms Managed Social Media Evidence Collections in 2018

By John Patzakis

The International Legal Technology Association recently published a very informative and comprehensive law firm eDiscovery practice survey “2018 Litigation and Practice Support Survey.” ILTA received responses from 181 different law firms — small, medium and large — on a variety of subjects, including eDiscovery practice trends and software tool usage.  The survey reveals three key takeaways regarding social media and website discovery.

The first clear takeaway is that social media discovery is clearly increasing among law firms and in the field in general. 90 percent of responding law firms reported conducting social media discovery in 2018. Additionally, the responding firms reported a higher average volume of cases involving social media evidence, with a 46 percent increase in firms handling at least 20 matters per year involving social media evidence.

ILTA Survey v2

Source: ILTA 2018 Litigation and Practice Support Survey

In terms of identified software solution usage, the survey establishes that X1 Social Discovery is the clear leader in the web and social media capture category among purpose-built tools used by law firms. 63 percent of all surveyed law firms rely on X1 Social Discovery on either an in-sourced or outsourced basis. This is consistent with our own internal data, reflecting the industry’s standardization of social media evidence collection by the sheer volume of customers that have adopted X1 Social Discovery. Nearly 200 law firms and 400 eDiscovery services firms have at least one paid license of X1 Social Discovery.

And in addition to social media evidence collections, X1 Social Discovery registered as the most popular eDiscovery software used for webmail collection (i.e. Gmail, Yahoo, Aol, Office 365) with 32 percent of law firms relying on X1 for this purposes. X1 Social Discovery provides an extremely effective means to collect, search, tag, and export via loadfile or pst web-based email evidence.

The final takeaway is that the practice of using screen captures with general IT tools like Adobe and Snagit is still commonly employed by practitioners at law firms, but is virtually non-existent amongst service providers, who typically are on the forefront of adapting best practices. Screen capturing is neither effective nor defensible.  They are ineffective because the results are very narrow and incomplete, and the process is very labor intensive resulting in much higher costs to the client than using best practices. (See Stallings v. City of Johnston, 2014 WL 2061669 (S.D. Ill. May 19, 2014): the law firm spent a full week screen capturing contents of a Facebook account — which amounted to over 500 printed pages — manually rearranging them, and then redacting at a cost of tens of thousands of dollars).

In addition, simple screen captures are not defensible, with several courts disallowing or otherwise calling into question social media evidence presented in the form of a screen shot image. This scrutiny will only increase with Federal Rule of Evidence 902(14) now in effect. I have previously addressed Rule 902(14) at length on this blog, but in a nutshell, screen captures are not Rule 902(14) compliant, while best practices technology like X1 Social Discovery have the critical ability to collect all available metadata and generate an MD5 checksum, or “hash value,” of the preserved data for verification of the integrity of the evidence. The generation of hash values is a key component for meeting the requirements of FRE 902(14).

The ILTA Litigation Practice survey results can be accessed here. For more information about how to conduct effective social medial investigations, please contact us, or request a free demo version of X1 Social Discovery.

 

1 Comment

Filed under Best Practices, Case Law, eDiscovery, Social Media Investigations, Uncategorized

March 19, 2019 · 9:52 AM

Rule of Evidence 902(13)(14) Update: States Begin Adoption, First Case Citations

By John Patzakis

Federal Rule of Evidence 902(13)(14) is now in effect and is already significantly impacting computer forensics and eDiscovery collection practices. We are now seeing multiple case citations of FRE 902(13)(14) in published court documents, and several states adopting the rule. Baker Hostetler, a prominent AMLaw 100 law firm, recently weighed in, stating that amended Rules 902(13)(14) “may incentivize parties to more aggressively challenge authenticity where it is apparent that an opponent is unable to make the pretrial certification envisioned by the amendments.” There is now at least one case example fulfilling that prediction. (More on that below). federalrulesofevidence-188x300_flat2

To review, FRE 902(14), which is particularly relevant to social media and internet evidence, provides that electronic data recovered “by a process of digital identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed. Instead, such properly collected electronic evidence can be certified through a written declaration by a “qualified person,” attesting that they verified the hash value of an offered item of electronic evidence and that it was identical to the original.

A detailed overview of Rule 902(14) can be found here.

A sample Rule 902(14) written certification can be found here.

The following states have amended their rules of evidence to allow for a provision identical or nearly identical to FRE 902(13)(14):

Arizona (Arizona Rule of Evidence 902(13)(14)).

Illinois (Illinois Rule of Evidence 902(12)(13))

North Dakota (North Dakota Rule of Evidence Rule 902(13)(14))

Pennsylvania. (Pending, expected to be formally enacted later in 2019).

The Arizona statute includes an additional and very notable requirement set forth in the accompanying official note to Rule 902(14), stating: “In order to provide the adverse party with an opportunity to properly analyze the issue of authenticity, the “record” provided by the proponent of the ESI evidence must include the metadata for the material in question if reasonably necessary to assess the material’s authenticity.”

This is only statue I am aware of that mandates by default the production of metadata associated with an item of electronically stored information.

In federal court, no published court decisions applying Rules 902(13)(14) are currently available. However we are seeing its application in filed court documents and briefs, which are accessible with Lexis, Pacer or Westlaw subscriptions.

In Elliot Kremerman vs. Open Source Steel, LLC, et al. (C17-953-BAT, US Dist. Ct. W.D. WA, 2018 WL 5318583), the plaintiff successfully opposed Open Source Steel’s (OSS) summary judgment motion. Plaintiff lodged several evidentiary objections in its opposition briefs, including to screen shots of Facebook evidence offered by OSS. The Plaintiff pointedly criticized OSS for not utilizing FRE 902(14): “While it is true that under Rule 902(14) certain certified electronic data, ‘authenticated by a process of digital identification, as shown by the certification of a qualified person’ is self-authenticating, OSS has made no attempt to meet this standard here.” (at pg 2)

In United States vs. Driscoll, 2018 WL 5263520 (D.D.C.), Federal prosecutors brought a pre-trial evidentiary motion based on FRE 902(13), seeking to streamline admission of government maintained military internet archives with written certifications instead of relying on a live witness. The crux of the motion was set forth as follows:

Recently, the Federal Rules of Evidence were amended to allow authentication, previously provided by a live witness in the cases cited above, to be provided by a certification. Federal Rule of Evidence 902(13) allows “a record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12).” certified by Fed. R. Evid. 902(11), Just as business records are certified by Fed. R. Evid. 902(11), an electronic record is also deemed to be self-authenticating and requires no extrinsic evidence of authenticity for it to be admitted into evidence, as long as there is a “certification of a qualified person” that is consistent with the requirements of Rule. 902. See Fed. R. Evid. 902(13) (2017 amendment). (at pp 4-5).

The Government’s motion was successful.

We will continue to monitor material developments with Rule 902(13)(14) and other legal developments involving social media and internet evidence on this blog.

Leave a comment

Filed under Authentication, Best Practices, Case Law, Case Study, Preservation & Collection, Social Media Investigations, Social Media Metadata

February 20, 2019 · 9:01 AM

5 Key Takeaways From The Sedona Conference’s Social Media eDiscovery Primer

By John Patzakis

The Sedona Conference® (“TSC”) has just published the 2nd edition of their very useful Primer on Social Media. Sedona is a very influential organization so this is an important development further underscoring the importance of social media evidence. According to TSC, the Primer series “provides best practice guidance on the corporate use and management of social media, as well as their preservation, collection, and production in the form of electronically stored information (ESI).”images - sedona

The 93 page second edition is a valuable resource and a must read for every legal and eDiscovery practitioner who address social media evidence. For purposes here, I have outlined 5 particularly interesting takeaways:

  1. Attorney’s Duty of Competency Requires Focus on Social Media Evidence

TSC’s Primer notes that “ethics rules require lawyers to understand the impact and consequences of social media,” and that “Counsel is responsible for reasonably investigating client social media content to identify relevant information and provide oversight of the search and production of such information. (at pg. 26).”  The Primer tracks and cites ABA model ethics Rule 1.1[8], noting that “counsel must be competent (or partner with a competent lawyer) to facilitate appropriate discovery of [social media evidence]. (at pg. 27)”

The Primer also features a good discussion of Lester v. Allied Concrete Company, where the plaintiff’s attorney did not meet his ethical obligations and instead blithely instructed his client to rid his Facebook page of damaging evidence, resulting in what many attorneys believe is the most severe eDiscovery court sanction imposed upon a lawyer. As the Primer reinforces, social media is highly relevant as evidence, and it is thus important that attorneys, paralegals, eDiscovery consultants and investigators proactively seek out such evidence, ensure its preservation, and include the investigation in their standard processes and checklists.

  1. Static “Print Screen” Captures are Problematic

As we have noted many times on this blog, print screen is not best practices for collection social media and other web-based evidence. TSC’s Primer provides important guidance on this point: “Printing out social media data has its evidentiary limitations, as a static image does not capture the metadata of the image, other than whatever information may be viewable as part of the screen shot. As a result, static images may result in an incomplete and inaccurate data capture that is hard to authenticate,” and that “[a]ny such collection will most likely be a visual representation that does not include metadata, logging data, or other information that would allow the content to be easily navigated and used. (at pp 45-46)”

  1. Extensive Discussion of Evidentiary Authentication for Web-based Evidence and Rule 902(14)

Noting that “[a]uthenticity is a key issue that a court must consider in determining the admissibility of social media evidence,” the Primer dedicates an entire section to the subject. This section features a good overview of case law, summarizing that “courts generally seem to agree that the mere testimony of the person who downloaded or printed out social media content, without more, is insufficient to establish its authenticity.” As such, the Primer advises that “parties proffering social media content should make sure they develop and present foundational evidence beyond simply printing or down-loading the content from the internet.” (at pp 85-86).

Among the authentication methods outlined by the Primer is Federal Rule of Evidence 902(14), which provides that electronic data recovered “by a process of digital identification” is to be self-authenticating. The Primer notes that with a proper social media collection process, FRE 902(14) will enable most litigants to utilize written certifications instead of costly trial testimony of a forensic or technical expert. But again, only where best practices are employed. For more resources, this blog has extensively addressed FRE 902(14). (See here).

  1. Negative Peer Review of Facebook’s DIY Function

When considering what constitutes best practices for collection of electronic evidence, courts and counsel generally look to industry peer review and publication 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. Sedona Conference publications are among the most important peer review in the eDiscovery world, so it is notable that the Primer says this about Facebook’s built in “Download Your Information” function:

Although the information from the Facebook download can perhaps be used as evidence in particular situations, it may be it may be preferable to have a vendor obtain the data with the appropriate tools for accessing and then reviewing the information in a manner that includes available metadata.

The Primer goes on to outline how certain data may be omitted by Facebook’s DIY and thus and the use of provider-controlled export tools, “may raise preservation and collection issues,” and that as those tools are often modified or updated without notice or documentation “the frequent changes to the export tools pose some risk that counsel should consider.” (at pp 47-48)

  1. Positive Peer Review Mention of X1 Social Discovery

The Primer does offer positive peer review of technical solutions for social media eDiscovery, noting that “Vendors have developed technology to allow certain content to be collected in a way that preserves the content and captures various metadata fields associated with social media data. Properly captured, these metadata fields can assist with establishing the chain of custody and authentication. They can also help to facilitate more accurate and efficient data processing and review.”

In the same section, The Primer provides this description of X1 Social Discovery affirming industry general acceptance:

“One of the popular social media discovery collection tools is X1 Social Discovery, which has API collection tools for Facebook, Twitter, YouTube, Instagram, and Tumblr, along with the capability to collect webpages and email from other providers.” (at pg. 49).

A full copy of TSC’s Primer on Social Media can be accessed here.

For more information on X1 Social Discovery, please see here.

Leave a comment

Filed under Authentication, Best Practices, eDiscovery, Preservation & Collection, Social Media Investigations, Social Media Metadata

February 7, 2019 · 9:15 AM

New York Appellate Court Allows “Data Mining” of Social Media accounts for Relevant Information

By John Patzakis

The New York Appellate Division allowed discovery into the non-public information of the social media accounts of a former professional basketball player relevant to his personal injury claims arising out of an automobile accident. In Vasquez-Santos v. Mathew 2019 NY Slip Op 00541 (January 24, 2019), the court held that the defendant may utilize the services of a “data mining” company for a widespread search of the plaintiff’s devices, email accounts, and social media.social-media-cases3

Vasquez-Santos is an extension of a large body of court decisions that allow discovery of a user’s “private” social media messages, posts and photos where that information is reasonably calculated to contain evidence material and necessary to the litigation. Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” according the Vasquez-Santos Court.

The Court found that the defendant “is entitled to discovery to….defend against plaintiff’s claims of injury,” and noted that the requested access to plaintiff’s accounts and devices “was appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities.”

Also noteworthy was the Court’s finding that while plaintiff did not take the pictures himself, that was of no import to the decision. He was “tagged,” thus allowing him access to the pictures, and thus populated his social media account.

This decision is consistent with the general rule that while social media is clearly discoverable, there must be a requisite showing of relevance before the court moves to compel full production of a litigant’s “private” social media.

This case illustrates that any solution purporting to support eDiscovery for social media must have robust public search and collection capabilities. This means more than merely one-off screen scrapes but instead an ability to search, identify and capture up to thousands of social media posts on an automated and scalable basis.

X1 Social Discovery has the ability to find an individual’s publicly available content and to collect it in an automated fashion in native format with all available metadata intact to enable systematic and scalable search, review, tagging and analysis. We heard from one major law firm that screen captures of a single public Facebook account took several hours, with the resulting images not searchable or organized into a case-centric workflow. Now with X1 Social Discovery, they are able to accomplish this full capture in seconds. This is critically important to conduct proper due diligence on a case and to better assist legal and investigative professionals to make the requisite showings for the full discovery of social media evidence in civil discovery, as in Vasquez-Santos.

Leave a comment

Filed under Best Practices, Case Law, Case Study, eDiscovery, law firm, Social Media Investigations