Category Archives: Social Media Investigations

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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January 24, 2013 · 1:36 PM

Social Media Geolocation Provides Critical Evidence – Including Admissible Hearsay

Nearly all new mobile devices not only feature geo-location but set its activation by default. Many of the most popular mobile apps are built around the premise of geo-location to help you navigate the streets, find new restaurants and other points of interest, and even find your friends, so more and more mobile users are enabling this function. As such, a significant number of social media posts made from a mobile device have geo-location coordinate metadata associated with them. The evidentiary value of such information cannot be understated.

For court purposes, the content of such Tweets may be admissible hearsay themselves even if the actual identity of the author of a Tweet is never ascertained.  Under Rule 803(3) of the Federal Rules of Evidence, “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will” is not excluded by the hearsay rule. Rule 803(3) arguably describes the vast majority of Tweets, especially those from the likes of Paris Hilton or Charlie Sheen.

And then there is the “excited utterance” exception under Rule 803(2) which provides that, “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule. So, a Tweet stating “Oh my gosh, a big SUV just ran a light and nailed that Prius!!!!” would arguably fall under Rule 803(2).

To enable our user base to leverage this key evidence, this week we are announcing a major enhancement to X1 Social Discovery software that we believe significantly advances the ball for social media investigations. X1 Social Discovery will now be 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 geo-located 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. This capability is extremely useful for law enforcement, corporate security and civil litigators.

Below is an example of a geo-located area with X1 Social Discovery, with the highlighted, captured Tweet suggesting that the author could be a key witness to a traffic accident:

accident4

From there, an investigator can silently follow identified persons of interest in furtherance and highly efficient investigation. For law enforcement, this is obviously useful to gather facts and identify potential witnesses for various crime scenes. 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 geo-located tweets in real time. But in order to take full advantage of this ability to gather key evidence, you need to own the software at the time of the incident.

This upgrade is part of our continuing innovation for X1 Social Discovery. We strongly believe that we have the top social media investigation tool on the market and this new feature only solidifies this position.

> To learn more, contact us for a demo or come visit us next week at Legal Tech New York, where we will be in booth #2012.

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December 14, 2012 · 9:12 AM

Round up of Recent Social Media Evidence News and Resources

For this week’s entry, we have a rundown of recent developments in the world of social media evidence from some reputable sources.

KL Gates Social Media Analysis. To start off, our  previous entry discussed the case of Richards v Hertz Corp., underscoring that any law firm defending or prosecuting personal injury claims, as well as their hired eDiscovery consultants, should be investigating social media sites for source evidence as a matter of course. The same is true for employment law matters and top 10 law firm K&L Gates (which has the best eDiscovery blog of any law firm in my opinion – eDiscoverylaw.com) has a great write-up of E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc, where social media evidence is playing a key role in that case, prompting the  court to issue a broad discovery order for social media. Again, nothing really new here – just further reinforcement of the standardization of social media evidence.

Law Review and Social Media Evidence. This year, several reputable law reviews and other legal treatises have published important and very useful research notes on social media evidence. These resources are subscription only for those with access to Westlaw, but the following are a select list with cites to the articles that I found most useful:

  1.  UNDERSTANDING AND AUTHENTICATING EVIDENCE FROM SOCIAL NETWORKING SITES, 7 Wash. J. L. Tech. & Arts 209, 224+
  2.  TIPS FOR AUTHENTICATING SOCIAL MEDIA EVIDENCE, 100 Ill. B.J. 482, 485
  3.  SOCIAL MEDIA AND THE RULES ON AUTHENTICATION, 43 U. Tol. L. Rev. 367, 405+
  4.  WHAT HAPPENS ON MYSPACE STAYS ON MYSPACE: AUTHENTICATION AND GRIFFIN V. STATE, 42 U. Balt. L.F. 164, 186
  5.  INTERNET, EMAIL AND SOCIAL MEDIA EVIDENCE, ST051 American Bar Association 51+

Netflix CEO in Hot Water with SEC over Facebook Post.  Netlix CEO Reed Hastings congratulated his team for a job well done in early July on his public Facebook page, and now the SEC is investigating whether he violated investor fair disclosure rules. His message was only 43 words, boasting of increased subscribership and usage of online videos, which could be construed as material non-public information related to financial reporting. This incident obviously highlights the importance of social media monitoring consisting of best practices as part of a corporate social media compliance program.

Search Compliance Interview with Barry Murphy: Finally, this article:  Q&A: Social media data collection increasingly vital to e-discovery is a good read. eDiscoveryJournal’s Barry Murphy is arguably the most knowledgeable independent industry analyst on social media evidence issues.

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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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November 16, 2012 · 10:28 AM

5 Case Studies of Social Media Evidence in Criminal Investigations

Law enforcement agencies across the nation are using social media to identify, detect and solve crimes. According to a recent survey by LexisNexis Risk Solutions of more than 1,200 law enforcement professionals with federal, state, and local agencies. 83% of the respondents are using social media, particularly Facebook and YouTube, to further their investigations. More than two-thirds (67%) of respondents believe that social media helps solve crimes more quickly.

This trend is also reflected in our ongoing survey of case law involving social media, where we recently identified 319 cases published in online databases in the first six months of 2012, which is about an 85 percent increase in the number of published social media cases over the same period in 2011, as reported by our prior survey earlier this year. About one half of those cases were criminal matters. As noted before, these are only the matters with published decisions that allow for us to see the facts of the case. As only a small fraction of cases involve an accessible published decision, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period.

Below is a sampling of five recent criminal cases that illustrate both the importance of social media evidence to crime fighting and the diverse nature of cases involved. The published court opinions are publicly available via the hyperlink:

Bradley v. State

This is one of many recent cases where social media evidence was used to identify suspects and/or witnesses. In Bradley, the victim of an armed robbery identified his assailants through publically available Facebook photos. In its opinion denying Bradley’s appeal, the Texas appellate court pointedly noted that “Vast online photo databases—like Facebook—and relatively easy access to them will undoubtedly play an ever-increasing role in identifying and prosecuting suspects.”

Hoffman v. State

In Hoffman, an 18-year old female was convicted of vehicular manslaughter. The Court enhanced her sentence when the prosecution introduced into evidence her MySpace page with photos and comments glamorizing alcohol abuse.

US v. Anderson

Our survey results included several dozen cases involving child exploitation investigations. In US v. Anderson, a pedophile used Facebook to identify and lure victims.

People v. Mincey

After these sex offenders are convicted and released on probation or parole, they need to be monitored. There are many cases such as People v. Mincey where the defendant violated their probation by using and communicating on social media sites.

US v. Collins

In this court filing, it is revealed that the “Anonymous” hacker group employed Twitter to communicate and coordinate attacks: Terms of probation sought to prevent the defendants from using Twitter while on probation. Monitoring Twitter is a crucial capability for cybercrime investigations.

Click here for more published cases involving social media in 2012

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