Tag Archives: social media

December 27, 2011 · 5:14 PM

Pennsylvania Court’s Excellent “Whitepaper” on Social Media Discovery

Another Pennsylvania court recently ruled that information posted by a party on their personal Facebook page is discoverable and ordered the plaintiff to provide their user name and password to enable the production of the information. Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) features a detailed and instructive 14 page opinion from Court of Common Pleas Judge Richard J. Walsh that is a must read for anyone remotely interested in the topic of electronic discovery of social media. It is one of those well-written legal opinions that I liked to use as a framework for my motions on a given subject back in my litigation days.

The case arose out of a chain-reaction automobile vs. motorcycle accident from which the plaintiffs allegedly suffered serious and permanent physical and mental injuries. However, the Facebook public timeline page of one of the plaintiffs featured content that contradicted her claims of serious injury, including several photographs showing her enjoying life with her family and a status update about going to the gym. Based upon this information, Defendant moved to compel disclosure of Plaintiff’s Facebook username and password.

In granting the motion, Judge Walsh began his opinion noting that Facebook is a site that “helps you connect and share with the people in your life,” and that the site has more than 800 million active users, 50% of whom are active on the site daily. Although he acknowledged that Facebook has privacy settings, the Court emphasized that users must take “affirmative steps” in order to prevent their information from being shared with the public. The Judge addressed and dispelled the following objections raised by the plaintiff:

1.     Relevancy and discoverability. The Court made it clear that just as other forms of electronic evidence are fair game if relevant, “it is clear that material on social networking sites is discoverable in a civil case.”

2.     Privacy.  The ruling determined that no social media privacy privilege exists: “No court has recognized such a privilege, and neither will we.” Information on Facebook is shared with third parties and, thus, there is no reasonable expectation of privacy in such information. As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

3.     Stored Communications Act. The Court found that Plaintiff’s information was not protected by the Stored Communications Act, which prevents the government from compelling Internet Service Providers (ISP) from disclosing information about their users. However, in this case the information was sought directly from Plaintiff, who is not an ISP.

4.     Overbroad and Harassing. Finally, the Court overruled Plaintiff’s objections that Defendant’s request was overbroad and disagreed with the claim that Defendant’s request is akin to asking Plaintiff to produce all of her personal mail. The Court also determined that the request would not cause unreasonable annoyance, because Defendant would bear the entire cost of investigating Plaintiff’s Facebook information, noting that “….this is one of the least burdensome ways to conduct discovery.”

Again, I recommend that you read this opinion in its entirety. We will continue to report on any significant cases in the social media legal realm.

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December 19, 2011 · 2:07 PM

The Affirmative Legal Duty to Address Social Media Evidence (Guest Attorney Blogger Edition)

John G. Browning

Today we are pleased to welcome a guest attorney blogger, John Browning who is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith LLP.  John is a frequent writer and speaker on issues related to social media and the law, and the author of the book The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (West Publishing 2010):


John Patzakis’ December 12, 2011, post on attorneys having an affirmative duty to address social media evidence was spot on.  The commentary by the Maryland appellate court in Griffin v. Maryland that lawyers “as a matter of professional competence” should be investigating social media avenues in their cases represents just the latest in a number of opinions from around the country that demonstrate that the lawyer who ignores online resources does so at his own peril.

For example, in a 2010 Missouri Supreme Court case, Johnson v. McCullough, the court appeared to impose an affirmative duty on attorneys to make online investigation a key part of their jury selection.  In the underlying medical malpractice case, plaintiff’s counsel asked the panel during voir dire about any previous history of lawsuits, and one venire member did not respond.  After a defense verdict, the plaintiff’s counsel investigated that juror’s civil litigation history online (using Missouri’s PACER-like service, Case.net), only to discover that the juror had been a defendant in several debt collection matters and a personal injury case. Plaintiff’s counsel moved for a mistrial; after it was granted, the defense appealed.  The Missouri Supreme Court not only upheld the defense verdict, it also added some pretty strong language about attorneys’ responsibilities “[i]n light of advances in technology allowing greater access to information.”  Saying that “it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention earlier on in a case, the court held that “a party must (emphasis added) use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and must present to the trial court any relevant information prior to trial.”

Courts in other states considering due diligence issues have recognized a “duty to Google,” if you will.  An Indiana appellate court in Munster v. Groce was incredulous that the plaintiff’s attorney had failed to Google the absent defendant Groce as a matter of due diligence, noting that the court itself had done so and immediately obtained search results that included a different address for Groce as well as an obituary for Groce’s mother listing numerous relatives who might have known his whereabouts.  And in Dubois ex rel. Butler, a Florida appellate court questioned the effectiveness of an attorney who had only checked directory assistance in order to get an address to serve a defendant, calling such a method in the age of the Internet the equivalent of “the horse and buggy and the eight track stereo.”  In a Louisiana case, Weatherly v. Optimum Asset Management, the appellate court upheld a trial judge’s rejection of a party’s due diligence claims where that judge had conducted his own Internet search and concluded that the proper contact information for the defendant was “reasonably ascertainable.”

Beyond this clear trend toward requiring greater digital savvy on the part of attorneys, ethical rules also mandate that a professionally responsible lawyer should not ignore social media.  Rule 1.1 of the ABA Model Rules requires lawyers to be competent in representation of their clients, with Comment 6 advising that lawyers “should keep abreast of changes in the law and its practice.”  In an age in which Facebook has amassed 800 million users worldwide and studies show that 65% of adult Americans have at least one social networking profile, how competent or diligent is the lawyer who fails to take information from social networking sites into account?

John Browning may be contacted at jbrowning@lbbslaw.com.

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December 6, 2011 · 11:25 AM

Producing Facebook and Twitter Evidence in Native Format

Per all recent case law on the subject, including for instance EEOC v. Simply Storage, social media evidence is considered Electronically Stored Information (ESI) on the same par as email and electronic files. This means that the various eDiscovery provisions of The Federal Rules of Civil Procedure (FRCP) apply to social media.  FRCP rule 34(b) requires that ESI be produced pursuant to a discovery request “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. Parties seeking formal discovery and who invoke the Rule 34(b) specification at the time of the discovery request are typically instructing that the responsive ESI be produced in native format with all metadata intact.

Without the right technology, producing social media evidence in native format with all metadata intact can be a difficult task at best and may lead to spoliation liability as a worst case but not far-fetched scenario. Social media archive solutions typically have very limited export capabilities and do not generally support native file and metadata export directly into review platforms. For this reason, X1 Social Discovery was developed collect and preserve social media in its native format and to integrate with leading attorney review and production platform Concordance. In fact, this Thursday, December 8, LexisNexis will be featuring X1 Social Discovery as part of their CLE webinar outlining best practices process and technology for addressing social media evidence.  The webinar speakers will be expert E-Discovery attorney Shannon Capone Kirk of Ropes & Gray and Don Swanson of Five Star Legal and Compliance Systems, Inc. Shannon will discuss the state of the law and recommended processes and Don will demonstrate a seamless and integrated workflow between X1 Social Discovery and Concordance. You can register for the CLE webinar at this link here.

The LexisNexis webinar will highlight that social media evidence collected, preserved, searched, analyzed and tagged with X1 Social Discovery can be quickly and seamlessly exported into Concordance while maintaining native file format and all metadata. We recently heard from one customer who exported thousands of tagged social media items from X1 Social Discovery into Concordance in a manner of minutes. We believe this functionality regarding scalable native file social media export is one of the many X1 Social Discovery features that are unique to the eDiscovery field. But I invite you to attend the webinar to assess this claim yourself.

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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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October 3, 2011 · 7:36 PM

Facebook Evidence Disallowed By Court Due to Lack of “Identifying Characteristics”

There has been a lot of discussion on the recent case of State of Connecticut vs. Eleck, 2011 WL 3278663 (Conn.App. 2011), which highlights the importance of employing best practices technology to collect, preserve and produce social media evidence. In this case, defendant Robert Eleck sought to admit Facebook evidence at trial that would have impeached a prosecution witness, Simone Judway.  Judway denied authorship of the Facebook messages in question, claiming someone must have hacked her account, even though the evidence revealed that the hacking occurred after the subject messages were sent.  The court determined that Eleck, who offered only a simple printout of the Facebook items, failed to adequately authenticate the data, ruling that “it was incumbent on the defendant, as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account.”

Importantly, the court noted that while the emergence of social media evidence does not necessarily require new rules of evidence, “circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.”  The court cited precedent cases where emails, chat logs and texts were properly admitted based upon their supporting and unique metadata and other circumstantial evidence that provide “identifying characteristics.” See, e.g. United States v. Siddiqui, 235 F.3d1318, 1322-23 (11th Cir.2000) (e-mails properly authenticated when they included defendant’s e-mail address, the reply function automatically dialed defendant’s e-mail address as sender, messages contained factual details known to defendant, messages included defendant’s 625*625 nickname, and other metadata.) Dickens v. State, 175 Md.App. 231, 927 A.2d 32, 36-38 (2007) (threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant); In re F.P., 878 A.2d91, 93-95 (Pa.Super.Ct.2005) (instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances).


State v. Eleck clearly illustrates why it is important to collect and preserve Tweets, Facebook and LinkedIn entries in a thorough manner with best-practices technology specifically designed for litigation purposes.  For instance, there are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries or a combination of them contrasted with other entries can provide unique circumstantial evidence that can establish foundational proof of authorship. (We identify the nearly two dozen fields of unique Twitter metadata in our social media evidence white paper).

When lawyers and their service providers rely on simple screen captures, printouts or even compliance archiving solutions that fail to collect and preserve all key metadata to admit social media into evidence, they run a significant risk of having key evidence in support of their client’s case disallowed by the court.

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