Category Archives: Best Practices

January 18, 2012 · 10:03 PM

Top eDiscovery Trends for 2012: Tough to Find a List without Social Media

The buzz around the eDiscovery of social media continues unabated in 2012, and for good reason. I challenged the team here at X1 Discovery to identify a numerical “2012 top trends in eDiscovery” list such as this one that did not include social media. Overall we identified 12 such projection lists from established vendors. This post from The eDiscovery Daily blog has a good compilation and links to 10 of those 12.  We identified only one list (from Applied Discovery) that did not mention social media at all as a key trend for 2012 (we didn’t count CaseCentral’s 2012 entry as they wisely foretold the rise of social media eDiscovery a year earlier in their 2011 predictions list).

In addition to these lists of prognostication, which are fun reads, attorneys, consultants and other scribes generated a wealth of content in 2011  on social media and eDiscovery. It seems most of the discussion emphasized the need for corporate social media policies, procedures and readiness plans. Those are important first steps, but what we have sought to achieve on this blog is to outline actual solutions in terms of technical, legal and investigation techniques. For example, we identified over 20 various metadata fields unique to Facebook items and a similar set for Twitter. We instructed how to properly follow jurors and witnesses on Twitter without generating indirect communications that would violate attorney ethics rules. And we analyzed up to date case law concerning social media evidence.

But policies and procedures are important and for that we recommend compliancebuilding.com published by attorney Doug Cornelius. This site has an excellent and comprehensive collection of social media policies from a variety of industries, types of companies (public or private), industry and approach to social media (proactive, prohibitive or neutral). There are well over 200 example policies and forms from many Fortune 500 companies, law firms and non-profit organizations, including the Association of Corporate Counsel.

As far as our approach, in 2012 will continue to report on key case law and other legal developments regarding the cloud and social media. In the next few weeks, look for more metadata analysis, case law and the intricacies of public Facebook search. Thank you for supporting this blog in 2011  — more great things are to come in 2012!

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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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November 15, 2011 · 9:10 PM

Facebook Spoliation Costs Lawyer $522,000; Ends His Legal Career

PenaltyIn what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. A copy of the final order in Lester v. Allied Concrete Company is available here.

If Murray had initiated a proper legal hold concerning his client’s social media evidence instead of directing blatant spoliation, he would be a lot wealthier and likely kept his job. Instead, he apparently quit his position as managing partner of the largest personal injury firm in Virginia and, according to local press reports, he no longer practices law.

The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouse’s fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Murray instructed his client through his assistant to “clean up” his Facebook account. “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”

This case reflects a trend we see based on anecdotal data points where a minority of legal and eDiscovery practitioners have not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence.

The attorneys we speak with are telling us that social media evidence is relevant to nearly every case they handle and the savvy ones are using social media evidence to win their cases. And as we recently noted, since 2010 social media evidence played a key role in 675 different cases with published decisions reflecting such involvement and in presumably tens of thousands more cases not involving published decisions. Those numbers will only increase as social media networks grow even more popular.

However, I was struck by one recent conversation where an eDiscovery consultant had not yet included social media data source in their standard investigation checklist. To be fair, there has not been best practices technology available to enable scalable, mainstream social media eDiscovery until recently, which impacts standard processes.

But just as the Virginia state court judge saw no difference between Facebook postings and other “traditional” electronically stored information, neither should anyone in the legal and investigative fields, especially since the software needed to get the job done is now available.

UPDATE: Here is copy of the previous court ruling determining sanctions were in order. The final order set the amount.

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