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As we often note on this blog, courts continue to routinely find that the testimony of an individual who merely printed a copy of a social media webpage is insufficient to authenticate social media evidence. Notable recent cases with such rulings include Linscheid v. Natus Medical Inc., 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015) (finding LinkedIn profile page not authenticated by declaration from individual who printed the page from the Internet); Monet v. Bank of America, N.A., 2015 WL 1775219, at *8 (Cal Ct. App. Apr. 16, 2015) (memorandum by an unnamed person about representations others made on Facebook is at least double hearsay” and not authenticated), and Moroccanoil vs. Marc Anthony Cosmetics, 57 F.Supp.3d 1203 (2014) (Facebook screenshots inadmissible in a trademark infringement without supporting circumstantial information).

These rulings underscore why best practice technology is essential for gathering social media and other Internet evidence. But while many practitioners understand this in terms of defensibility, many operate under the mistaken assumption that manual print screen efforts are a cost-saving shortcut. Nothing could be further from the truth. Stallings v. City of Johnston, 2014 WL 2061669 (S.D. Ill. May 19, 2014), is very instructive as it clearly illustrates that printing Facebook pages for production in eDiscovery is a really bad (and expensive) idea.  In this case, plaintiff Jayne Stallings brought suit for wrongful employment termination against the City of Johnston, her former employer. And it seems that Stallings, like millions of others, was an avid and highly opinionated Facebook poster.

So to respond to discovery requests, Plaintiff’s counsel and a paralegal spent a full week printing out the contents of Plaintiff’s Facebook account — which amounted to over 500 printed screen captures — manually rearranging them, and then redacting the pages. Plaintiff counsel also claimed that she could not provide the relevant Facebook information on a disk, and thus resorted to inefficient paper production – an obviously costly exercise. A week of paralegal and lawyer time could easily run $25,000 and no client should pay anywhere near that amount for a task that, with the right technology, requires minutes instead of days to perform.

Print screen as a social media evidence collection method only leads to higher costs for many reasons, namely because the resulting output is a truncated, unsearchable, flat image that fails to retain the all-important metadata. As a result, a substantial amount of secondary processing must be done to upload the social media images into a standard attorney review platform. The images must be run through OCR, the various requisite metadata fields must be manually entered, and the truncated screen shots reassembled into context so they appear and read as they did in their original state. All this will typically cost thousands of dollars in additional processing fees.

Additionally, when an examiner merely relies on print screen, the scope and thoroughness of the collected social media and Internet evidence is severely limited. This often results in key evidence being overlooked as well as impacting its evidentiary integrity. Employing more automated means, such as X1 Social Discovery, enables the examiner to quickly collect entire web pages and publically available social media accounts, which can be hundreds of pages long. This comprehensive and thorough collection allows the examiner to collect far more potential evidence, preserving all relevant metadata, and having that evidence be immediately searchable and reviewable in a highly effective integrated review platform.

Further, the examiner can build a much stronger case for authentication by constructing timelines, drawing connections between witnesses and their various posts, collecting more corroborating metadata, and a litany of other information to build a compelling circumstantial case to authenticate the social media or web page evidence in question.

And of course another key benefit of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” in order to present the best case possible for the authenticity of collected social media evidence. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data, for verification of the integrity of the evidence.

It is important to collect and preserve social media posts and general web pages 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.

So while it can seem counterintuitive as sometimes there is a tradeoff when it comes to legal technology between best practices and costs, manual print screen efforts for social media are not only very costly, they subject clients to evidentiary challenges that could place an entire case in peril. But you can have the best of all worlds with the scalability, cost-saving and defensibility brought by X1 Social Discovery.

by John Patzakis

Last week we attended and exhibited at VMworld 2014 in San Francisco, VMware’s annual conference that brings together over 25,000 thought leaders, subject matter experts, technology providers and IT professionals to immerse themselves in the latest in virtualization and cloud technology. VMworld is now essentially the modern-day COMDEX, spread out among the sprawling Moscone Center. The difference is that VMworld’s exclusive focus is the enterprise, and more specifically the modern and trending IT enterprise. VMworld is where the forward thinking enterprise CIOs are now, and where everyone else will be in the next 2-4 years.

In the opening keynote, VMware CEO Pat Gelsinger — who recently explained to the Wall Street Journal that “we are in the period of the greatest tectonic shift in the IT industry in the last 30 years” — emphasized the trend of “frictionless IT” running the enterprise where “everything is virtualized” utilizing a hybrid mix of on-premise virtualization, public and private cloud.  Frictionless IT involves a model where pools of virtual machines — comprising virtual desktops and servers running in either the public cloud or a private cloud — are managed by IT administrators enterprise-wide from a single console, without physically touching any hardware. This allows for virtual desktops, servers and supporting applications and software upgrades to be rolled out and managed on a highly automated basis, including having resources moved from private to public clouds and back again, all with a few mouse clicks.

So given the importance of this conference to the present and future of enterprise IT, it was highly notable that X1 was the only enterprise search provider present among more than 400 exhibitors. It is actually surprising that no other search vendors were here given how quickly attendees ‘got it.’  They understood that search is the elephant in the room for VDI and other enterprise-stored data and quickly responded positively to X1’s message. The reason for our competitors’ absence, in my opinion, is that nearly all the current enterprise search software vendors, as well as eDiscovery tools, represent legacy technology that does not support deployment into highly virtualized environments. Traditional enterprise search solutions are limited to either appliances or arduous manual on-site installations, neither of which can operate in true virtual environments. In other words, they represent a very high degree of friction, with entrenched architectures that must be completely re-written in order to support virtualization and the new frictionless IT paradigm.

And the thing about truly supporting cloud and on-premise virtualization is that enterprise software vendors cannot fake it with enterprise CIOs and their staff. For instance, there is a high degree of “cloud-washing” in eDiscovery, where vendors host their own attorney review systems on a SaaS basis, and thereby claim they are cloud innovators. And while there is a legitimate but limited use case there, a complete process baked into the enterprise and its information management DNA needs to encompass integrated preservation, collection and early data assessment — including first pass review. Such an eDiscovery system must be on premise and will not survive unless it truly operates in a virtualized environment, whether in the public or private cloud.

Solutions that truly support virtualization are VMware-ready certified, and can also be quickly and remotely installed into the public cloud through a readily available machine image, such as an Amazon Machine Image (AMI) for the Amazon Web Services cloud. In essence, major enterprise software now has to effectively install almost as easily as a mobile phone app.

As an aside, another notable observation that I believe is highly indicative of this “tectonic shift” was the near complete absence of the major systems integrators, with the exception of Capgemini. Most of the other top 10 SIs were completely absent and the few others there had a very minimal presence. This is, again in my opinion, because most of these systems integrators thrive on a “friction” model (think nine-month enterprise software installation), and are struggling to adapt to the new world order.

In our recent discussions with folks at Amazon Web Services, they recounted amusing stories of companies asking to send hardware appliances or teams of expensive consultants to AWS data centers to index and manage their data for enterprise search and eDiscovery purposes. Both scenarios are non-starters for public cloud architectures. This is where X1 is leading the charge for both enterprise search and eDiscovery.

We are very excited about our partnership with VMware, and the hundreds of contacts and new and existing customers we connected with at the show. And more exciting things are to come. Stay tuned for exciting announcements in the coming months. In the meantime, I recommend you start making plans for VMworld next year.