Tag Archives: social media

June 28, 2013 · 11:17 AM

Zimmerman Trial Counsel Botches Social Media Evidence on National TV

If you are trial counsel presenting, for example, DNA or scientific accident reconstruction evidence, you would be sure to have a good command of such evidence. Not that a PhD in such subjects is required, but a competent understanding from at least a layman’s perspective would enable an effective direct or cross-examination. Nothing more than basic trial preparation.

Unfortunately, the prosecution in the Zimmerman trial did not meet this standard. Yesterday, while questioning key witness Jenna Lauer, prosecutor Bernie de la Rionda lugged his laptop up to the witness stand and clumsily poked around Lauer‘s Twitter account. He sought to paint Lauer as a Twitter follower of Robert Zimmerman, the defendant‘s brother, thus suggesting bias. Unfortunately, de la Rionda lacked a general command of how Twitter worked, including a basic understanding of a follower versus a followee on Twitter, and Lauer was able to get away with denying she was following Robert Zimmerman. (Video of this trial exchange here – at the 8:20 mark).

In truth, Lauer was in fact following Robert Zimmerman and, in an apparent recognition that she may have committed perjury, deleted her Twitter account shortly after her testimony. Below is a screenshot establishing who Lauer was following, obtained from the silent follow feature of X1 Social Discovery, which collected and preserved all tweets and other publically available account information only hours before Lauer deleted the account from Twitter. This evidence clearly reflects that George Zimmerman’s brother was in fact followed by the witness.

Click to enlarge image

Click to enlarge image

By now it should be obvious to every trial lawyer that utilizing best practice tools that not only collect and preserve this key social media evidence in a silent and defensible manner but also enable the presentation of such key social media evidence at trial — without having to share your laptop with the witness out of the view of the jury — is required. As attorney John Browning, a partner at Lewis Brisbois, pointed out earlier on this blog, any attorney who does not leverage the mountains of social media evidence available in nearly all cases may be violating their ethical duty of competence.

I don’t know what the local rules are for the Zimmerman courtroom, but the above screenshot from X1 Social Discovery would have made an effective visual. Evidence on social media accounts establishing that a party or witness has friended or is following a particular party is routinely used to establish bias establish connections to our knowledge of that person or subject matter. There are mountains of clues and subtle inferences that can be derived from such information with the right tools and requisite degree of understanding of social media, and the attorneys and investigators who have the competency to leverage this information gain the upper hand.

And as it turns out, social media evidence is relevant to the testimony of the two most important witnesses in the Zimmerman case thus far. Travon Martin’s friend and “star” prosecution witness Rachel Jeantel apparently deleted portions of her twitter account in the past few days to allegedly cover-up incriminating and off color tweets. The lesson here is that social media evidence is not only relevant to the direct parties to a litigation but also key witnesses as well as jurors.

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February 5, 2013 · 9:24 AM

Social Media Discovery Hotter Than Predictive Coding?

fire isolated over black backgroundIt was a great show last week at LegalTech New York. Definitely an increase in the number and quality of attendees and it was nice to see many friends and colleagues both old and new.

Also very noticeable were the many, many vendors sporting predictive coding (aka technology assisted review) messaging in their respective booths and various forms of marketing material. In fact, one industry colleague pointed me to a recent bold prediction offered by Recommind lawyer Howard Sklar, essentially proclaiming that predictive coding will have really hit the big time when a state bar organization issues an ethics opinion stating “that failure to use predictive coding is ethically questionable, if not unethical.” Sklar goes on to predict that such an opinion will come within the next 18 months.

I don’t disagree that such a development would be a big deal. But my question is, why stop at an advisory ethics opinion? What about an actual published court opinion where a sitting appellate judge decrees, without mincing words, that legal ethics obligations require lawyers to employ predictive coding? Now that would be huge. Something, in fact, like Griffin v. State, 192 Md. App. 518, 535 (2010), which addresses another hot topic in eDiscovery:

“[I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”

Now to be fair, I must point out that Griffin v. State was reversed and remanded on other grounds (419 Md. 343 (2011)), but I would argue the overall impact from an ethics and best practices standpoint is still there.

Sklar also points out three appellate level cases with written opinions that discuss the concept of predictive coding, without any definitive rulings compelling its use, but nonetheless discussing the concept. Two of the three are even retrievable on Westlaw. I think such appellate-level published decisions are important, which is why we highlight the several thousands of published court decisions in the past three years (see here and here) that have compelled the production of, admitted into evidence, or otherwise recognized the importance of social media evidence to the case at hand. New cases are being published every day, to the point where we candidly have stopped counting due to the deluge. So by the standard set by of my esteemed fellow eDiscovery lawyer Mr. Sklar, social media discovery is a very hot field indeed.

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November 29, 2012 · 9:57 AM

Plaintiff Claims Physical Injuries Made Worse by Cold Weather, Then Goes Snow Skiing

Earlier this month a New York Appellate court ordered the complete disclosure of a personal injury Plaintiff’s Facebook account.  In Richards v Hertz Corp., 2012 WL 5503841 —N.Y. Supp. 2d—, (NY AD 2d 2012, November 14, 2012) the Plaintiff claimed that her injuries from an automobile accident impaired her ability to participate in sporting activities and caused her to suffer pain that was exacerbated in cold weather. However, in the course of investigating the claim, the Defendant identified publically available images on the Plaintiff’s Facebook page “depicting [plaintiff] on skis in the snow,” (i.e. not only a sporting activity but in cold weather) and subsequently served a discovery demand requesting all her status reports, email, photos, and videos posted on her account since the date of the accident.

The Plaintiff objected to the request and ultimately a court motion was brought to resolve the discovery dispute. Initially, the trial court only directed that the injured plaintiff send defendants a copy of “every photo on Facebook” evidencing the injured plaintiff “participating in a sporting activity.” However, The Defendants appealed the order and the appellate court viewed the trial court’s order as too narrow, finding that defendants demonstrated that the injured Plaintiff’s profile contained an image that was “probative” of the issue as to the extent of her injuries, and finding in turn that “other portions of her Facebook profile may contain further evidence relevant to that issue.”

The appellate court ruled that defendant made “a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”

Regular readers of this blog will note that there is nothing new here as we have covered many similar recent cases with this type of fact pattern and outcome. But it is notable that such cases are becoming very routine. Also, it should be very clear by now that any law firm defending or prosecuting personal injury claims – as well as their hired eDiscovery consultants — should be investigating social media sites for sources evidence as a matter of course. As attorney John Browning pointed out earlier on this blog, any attorney who fails to do so may be violating their ethical duty of competence.

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June 27, 2012 · 2:50 PM

Authenticating Internet Web Pages as Evidence: a New Approach

By John Patzakis and Brent Botta

In recent posts, we have addressed the issue of evidentiary authentication of social media data. (See previous entries here and here). General Internet site data available through standard web browsing, instead of social media data provided by APIs or user credentials, presents slightly different but just as compelling challenges.

The Internet provides torrential amounts of evidence potentially relevant to litigation matters, with courts routinely facing proffers of data preserved from various websites. This evidence must be authenticated in all cases, and the authentication standard is no different for website data or chat room evidence than for any other. Under Federal Rule of Evidence 901(a), “The requirement of authentication … is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998).

Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. In many cases, however, that option is not available. In such situations, the testimony of the viewer/collector of the Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the website documents are what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).

One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” – to borrow the Perfect 10 court’s term — to the user in order to present the best case possible for the authenticity of Internet-based evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data.

But html web pages pose unique authentication challenges and merely generating an MD5 checksum of the entire web page, or just the web page source file, provides limited value because web pages are constantly changing due to their very fluid and dynamic nature. In fact, a web page collected from the Internet in immediate succession would very likely calculate two different MD5 checksums. This is because web pages typically feature links to many external items that are dynamically loaded upon each page view. These external links take the form of cascading style sheets (CSS), graphical images, JavaScripts and other supporting files. This linked content can be stored on another server in the same domain, but is often located somewhere else on the Internet.

When the Web browser loads a web page, it consolidates all these items into one viewable page for the user. Since the Web page source file contains only the links to the files to be loaded, the MD5 checksum of the source file can remain unchanged even if the content of the linked files become completely different.  Therefore, the content of the linked items must be considered in the authenticity of the Web page. X1 Social Discovery addresses these challenges by first generating an MD5 checksum log representing each item that constitutes the Web page, including the main Web page’s source. Then an MD5 representing the content of all the items contained within the web page is generated and preserved.

To further complicate Web collections, entire sections of a Web page are often not visible to the viewer. These hidden areas serve various purposes, including metatagging for Internet search engine optimization. The servers that host Websites can either store static Web pages or dynamically created pages that usually change each time a user visits the Website, even though the actual content may appear unchanged.

In order to address this additional challenge, X1 Social Discovery utilizes two different MD5 fields for each item that makes a Web page.  The first is the acquisition hash that is from the actual collected information.  The second is the content hash.  The content hash is based on the actual “BODY” of a Web page and ignores the hidden metadata.  By taking this approach, the content hash will show if the user viewable content has actually changed, not just a hidden metadata tag provided by the server. To illustrate, below is a screenshot from the metadata view of X1 Social Discovery for website capture evidence, reflecting the generation of MD5 checksums for individual objects on a single webpage:

The time stamp of the capture and url of the web page is also documented in the case. By generating hash values of all individual objects within the web page, the examiner is better able to pinpoint any changes that may have occurred in subsequent captures. Additionally, if there is specific item appearing on the web page, such as an incriminating image, then is it is important to have an individual MD5 checksum of that key piece of evidence. Finally, any document file found on a captured web page, such as a pdf, Powerpoint, or Word document, will also be individually collected by X1 Social Discovery with corresponding acquisition and content hash values generated.

We believe this approach to authentication of website evidence is unique in its detail and presents a new standard. This authentication process supports the equally innovative automated and integrated web collection capabilities of X1 Social Discovery, which is the only solution of its kind to collect website evidence both through a one-off capture or full crawling, including on a scheduled basis, and have that information instantly reviewable in native file format through a federated search that includes multiple pieces of social media and website evidence in a single case. In all, X1 Social Discovery is a powerful solution to effectively collect from social media and general websites across the web for both relevant content and all available “circumstantial indicia.”

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May 22, 2012 · 12:14 PM

Surging Wage and Hour Class Action Suits and the Importance of Social Media Evidence

Wage and hour class action suits are rising dramatically. According to the USA Today, Plaintiffs filed 7,006 federal court wage-and-hour suits in 2011, many of them class actions, nearly quadruple the 2000 total. Many of these suits involve claims of misclassifying employees as exempt from overtime, especially salespersons and temporary professional employees. Additionally, these claims involve allegations of non-exempt employees being required to work off hours through the use of mobile devices, webmail and social media.  As such, social media evidence is playing an important role in the litigation of wage and hour claims on multiple levels.

As one recent example, a federal court in the Northern District of California earlier this month imposed monetary sanctions of nearly $16,000 and disqualified the lead plaintiff as the class representative in a wage and hour class action for failing to disclose relevant Facebook evidence. In Calvert v. Red Robin International, the lead plaintiff proved to be very active on Facebook, using the site to communicate with other claimants and to recruit potential plaintiffs into the class. The plaintiff and his lawyers failed to disclose this evidence, which the defendant’s law firm ultimately obtained through their own diligent investigation efforts. Such disqualifications and monetary sanctions against the lead plaintiff can prove to be important tactical victories in cases such as these.

Calvert is just one of many recent wage and hour cases that we have seen where social media has played a critical role. For instance, our customers have recently reported successfully using X1 Social Discovery in wage and hour claims, including, for example, to collect Linkedin and Facebook evidence that contradicted Plaintiffs claims that they were non-exempt employees. In addition to this customer use example and the case of Calvert v. Red Robin International, there are numerous other scenarios where the search and collection of social media evidence can be essential to the litigation of wage and hour cases, highlighting the importance of best practices technology to diligently represent your clients’ interests.

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