Category Archives: Social Media Investigations

September 19, 2013 · 10:43 AM

Discovery Templates for Social Media Evidence

Book coverAs a follow-up to the highly popular Q&A last week featuring DLA attorneys Joshua Briones and Ana Tagvoryan, they both have graciously allowed us to distribute a few of their social media discovery templates found in the appendix of their book:  Social Media as Evidence: Cases, Practice Pointers and Techniques, published by the American Bar Association, available for purchase online from the ABA here.

The first template is deposition questions relating to social media evidence. The second is a sample of special interrogatories. They can be accessed at this link. Thanks again to Joshua and Ana for their insightful interview, and for providing these resources.  Their book contains many more such templates and practice tips, including sample document requests, proposed jury instructions, client litigation hold memorandums with a detailed preservation checklist, preservation demand letters, and much more.

In other social discovery news, the ABA Journal this month published an insightful piece on social media discovery, featuring attorney Ralph Losey, with a nice mention of X1 Social Discovery. In a key excerpt, the ABA Journal acknowledges that “there is a pressing need for a tool that can monitor and archive everything a law firm’s client says and does on social media.”  The article also noted that more than 41% of firms surveyed in Fulbright’s 2013 annual Litigation Trends report, acknowledged they preserved and collected such data to satisfy litigation and investigation needs, which was an increase from 32% the prior year.

Another important publication, Compliance Week, also highlighted social media discovery, where Grant Thornton emphasizes their use of X1 Social Discovery as part of the firms anti-fraud and data leakage toolset. Incidentally,  when determining whether a given eDiscovery tool is in fact a leading solution in its class, in our view it is important to look at how many consulting firms are actually utilizing the technology, as consulting firms tend to be sophisticated buyers, who actually use the tools in “the front lines.” By our count we have over 400 paid install sites of X1 Social Discovery and over half of those – 223 to be exact – are eDiscovery and other digital investigation consulting firms. We believe this is a key testament to the strength of our solution, given the use by these early adopters.

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August 19, 2013 · 10:41 AM

Social Media Evidence at the Center of the A-Rod Suspension

Earlier this month, Major League Baseball took the unprecedented step of suspending a star player, Alex Rodriguez, for two years due alleged illegal use of performance enhancing drugs (PEDs). Yankee playerWhile the suspension of one of baseball’s greatest players of all time made the headlines, the critical role social media evidence played in tying “A-Rod” to Biogenesis, the company which allegedly provided him with the PEDs, is an important sub-story. While we are not at liberty to discuss any details of the social media investigation software used by any of the parties, this Associated Press report describes a detailed, thorough and highly professional investigation of the social media evidence involved.

Specifically, investigators collected key evidence from publically available Facebook posts and Tweets from associates of the targets, which apparently proved to be the most effective source of evidence. Per the AP: “Baseball investigators examined the Facebook pages of (Biogenesis founder Anthony) Bosch and Porter Fisher, the former Biogenesis associate who gave documents to the newspaper. They began to sketch out which people they were friends with, and which of those friends posted photos of athletes or mentioned athletes. Each link led to new loops that provided leads.”

In response to the investigation, MLB players’ union general counsel David Prouty noted that social media evidence “adds a layer of proof that certainly wasn’t available many years ago.”

This type of thorough investigation of publically available social media evidence is only possible with best practices technology that enables scalable and automated collection of up to millions of items preserved and organized in a single case in an instantly searchable and reviewable format.

Given its very high profile and the high stakes involved (The suspension could cost A-Rod over $100 million) the A-Rod case represents a seminal development in the field of social media and Internet investigations. According to the media reports, this is not a situation where social media evidence merely served a supporting role, but was a difference-maker that apparently formed the basis of the suspension.

No need to comment further.

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July 31, 2013 · 12:46 PM

Judge Grimm’s Important Guidance on Social Media Evidence Authentication

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District Judge Paul W. Grimm

Recently, Federal District Court Judge Paul Grimm and two of his law clerks published an excellent and comprehensive legal article: “Authentication of Social Media Evidence,” American Journal of Trial Advocacy, 36 Am. J. Trial Advoc. 433 (2013). Judge Grimm is widely seen as the one of the most influential judges concerning electronic discovery issues. He is known for several ground breaking decisions in the field including Lorraine v. Markel (2007), and Victor Stanley, Inc. v. Creative Pipe Inc. (2008). Earlier this week, The American Lawyer profiled him as one of the top 5 judges at the forefront of eDiscovery.

Given his prominence and celebrity status in the eDiscovery community, Judge Grimm’s thorough analysis and guidance on social media evidentiary authentication is an important development for social media evidence discovery. Judge Grimm succinctly summarizes his article as follows:

“Given the ubiquitous use of digital devices to communicate on social media sites, there is little chance that such evidence will cease to be highly relevant in either criminal or civil cases…Hopefully, this Article can shed some light on the nature of the confusion and offer useful suggestions on how to approach the authentication of social media evidence. It is a near certainty that the public appetite for use of social media sites is unlikely to abate, and it is essential for courts and lawyers to do a better job in offering and admitting this evidence. We hope that reading this Article will be their first step toward this goal.”

More than just a first step as a resource for courts and lawyers, I would expect judges to consider this material solid persuasive authority in deciding cases involving social media and other Internet evidence. The 29-page article is available to subscribers to LexisNexis and Westlaw, but non-subscribers can purchase the article here for $15.

Highlights of Judge Grimm’s piece include a “checklist for authentication” and a thorough discussion of the perils of relying on mere screen printouts of social media and other Internet evidence, documenting the many cases where such printouts were disallowed or otherwise subject to serious challenges by the courts. Additionally, Judge Grimm highlights Federal Rule of Evidence 901(b)(4), (authenticating evidence through internal patterns and other “distinctive characteristics”) noting that it is “one of the most successful methods used to authenticate all evidence, including social media evidence.” Judge Grimm advises the collection of “all of the circumstances and characteristics that apply to the social media exhibit that add up to a showing that, more likely than not, it was authored by the person that you contend authored it.”

We published a whitepaper on this important topic (download it here) of authenticating social media evidence, with an emphasis on Rule 901(b)(4). The bottom line is that absent uncontroverted and cooperative witness testimony, lawyers must turn to circumstantial evidence to help establish an evidentiary foundation for social media evidence. Metadata is particularly important as a “distinctive characteristic” under Rule 901(b)(4), as social media items contain a wealth of key metadata that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question.

This is where utilizing best practices technology that 1) establishes an effective chain of custody of the collected social media; and 2) captures all available metadata without alteration is essential.

In addition to Judge Grimm’s excellent piece, the New York Law Journal, a publication of the NY State Bar, published a very useful practice guide article earlier this year: “Made for Each Other: Social Media and Litigation.” 85-FEB N.Y. St. B.J. 10 (Feb 2013). Here is a key quote: “For the litigator, social media provides a wealth of information– available at one’s fingertips that just a few years ago required hiring a personal investigator to obtain.” The article includes mentions of X1 Discovery at footnotes 38, 40 and 53. A full copy of this article is available on the New York State Bar website here.

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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.

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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 21, 2013 · 1:35 PM

Live Social Media Evidence Capture from Today’s Vegas Strip Shooting

Unfortunately, a tragic event transpired this morning in Las Vegas leaving three people dead and at least three others injured after a shooting and fiery six-vehicle crash along the Strip. According to reports, at about 4:20 a.m. someone in an SUV opened fire into a Maserati that had stopped at a light. The Maserati moved into the intersection at Flamingo Road and collided with a taxi, starting a chain of crashes that involved four other vehicles. Our thoughts and prayers are with the victims and their families.

Given the criminal investigation and civil liability implications of this event, we wanted to demonstrate the new important capabilities of X1 Social Discovery to immediately identify, preserve and display geolocated Tweets (and often Instagram posts) at or near the scene immediately before, during and after the incident. X1 Social Discovery is now able to map a given location, such as a city block or even a full metropolitan area, and search the entire public Twitter feed to identify any geolocated tweets that have been made in the past three days (sometimes longer) within that designated area, as well as to capture any new tweets within that area going forward. As illustrated below, this capability is extremely useful for law enforcement, corporate security and civil litigators.

When we learned of the Vegas incident, we mapped the general area of the strip  and within seconds, all the recent Tweets from the past several hours were populated within the grid and collected within X1 Social Discovery.

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From there, we were able to sort those tweets within the interface and identify some key Tweets made immediately after the incident, such as this post:

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We are able to sort and identity the exact time (in GMT) of the posts in question as well as associated metadata.

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Here is another post below. Both this example and the one above contain notable intel in the comments, suggesting the possible identity of one of the victims, as well as a reference to another posted picture on Instagram. This reflects the utility of X1 Social Discovery’s ability to collect not just the social media post, but the comments thereto in real-time.

Accident 1

This feature can also be employed proactively, to map an area around a school, an embassy, an oil drilling facility overseas, or other critical infrastructure assets to collect and store any geolocated tweets in real time. But of course in order to take full advantage of this ability to gather key evidence such as the evidence, posted above, you need to own the software at the time of the incident.

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