Category Archives: Best Practices

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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April 3, 2013 · 7:18 AM

SharePoint eDiscovery: Ten Times the Cost

Sharepoint no colorOur recent webinar on SharePoint eDiscovery challenges with eDiscovery Journals’ Greg Buckles featured a substantive and detailed discussion on the nuances, pitfalls and opportunities associated with eDiscovery of data from SharePoint sites. This topic is very timely as the majority of enterprises are deploying the Microsoft platform at an accelerated rate, with the solution reaching $1 billion in sales faster than any other Microsoft product in history. As SharePoint enables enterprises to consolidate file shares, Intranet sites, internal message boards and wikis, project management, collaboration and more into a single platform, it provides significant operational efficiencies as well as eDiscovery challenges. The vast majority of current SharePoint deployments are versions 2007 or 2010, and neither have meaningful internal eDiscovery or even export features.

Greg Buckles is a well-known eDiscovery expert with a strong command of technical issues concerning data collection from SharePoint sites. In his presentation, he addressed the particular challenge of preserving data from SharePoint in a targeted matter and in context. According to Buckles, current eDiscovery practices involve mass raw data exports from the platform, instead of a preferable practice of review and early case assessment in place to enable a far more efficient and targeted collection of only potentially relevant information. Bulk exports from SharePoint contain a mass of unstructured data that is out of context with no easy way to associate files, document lists, metadata fields and the many other native data types and fields. As a result, the data must be sorted out on the back-end in time-consuming and highly manual eDiscovery processing and review efforts.  Buckles reports that he routinely sees tenfold increases eDiscovery processing and review costs because of these challenges.

A full video recording of the webinar can be accessed here.

Another key SharePoint eDiscovery challenge involves its deployment architecture. By their nature, typical SharePoint deployments are de-centralized as the solution is geared toward supporting individual departments and “teams” as opposed to forcing data centralization to a single and large data center. Appliance-based eDiscovery solutions or remote collections do not work as it may take weeks if not months to copy a multi-terabyte SharePoint site over a network connection and a large corporation may have several dozens of SharePoint silos to collect from.  Manual collection efforts, which are geared toward mass “data dumps,” are as mentioned very costly and inefficient.

Instead, what is needed is a solution such as X1 Rapid Discovery can quickly and remotely install and operate within the same local network domain to enable localized search, review and early case assessment in place. X1 Rapid Discovery’s full content indexing and preview of native SharePoint document libraries and lists, as well as it robust search, document filters, intuitive review interface, uniquely enables targeted and contextual search, preservation and export of SharePoint evidence in its native format. In fact we believe it is the only solution available that enables true in-place early case assessment and eDiscovery review of SharePoint sites, including iterative search, tagging and full fidelity preview in place, without the requirement to first export all of the data out of the Platform.

To learn more, sign on to the recorded webinar or please contact us at info@x1discovery.com for a further briefing to learn how to save your organization or your clients tens of thousands of dollars on litigation costs associated with SharePoint.

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