February 11, 2014 · 1:28 PM

Judge Sends Facebook Friend Request, Gets Disqualified

Add_as_friendAs part of our periodic practice, we are checking in on the reported cases involving social media evidence for this past month of January. A quick tally identifies 74 cases where social media evidence played a key role last month, which continues the trend we saw with a significant upsurge in such cases in the second half of 2013. One interesting development for January involved separate cases of misconduct on the part of a judge and a prosecutor, respectively. Below is a brief synopsis of five of the more notable January cases. While improper juror social media use is a common occurrence in the cases we monitor, the first two of the five highlighted January cases involved judicial and prosecutorial misconduct allegations from their Facebook activities:

Chace v. Loisel (Florida Court of Appeal, Jan. 24, 2014)  2014 WL 258620

In this Florida divorce case, the judge presiding over the matter sought to “friend” one of the parties, Sandra Chace, who had filed for divorce from her husband. The judicial friend request came prior to the final ruling in the martial dissolution proceeding. Upon advice of counsel, Chace declined to respond to the invitation. Thereafter, the court entered a final judgment of dissolution, with terms that Chace believed were highly unfavorable to her. Following entry of the final judgment, Chace filed a formal complaint against the judge, alleging that the court sent her a Facebook “friend” request and then retaliated against her after she did not accept the request. Chace also filed a motion with the judge for him to be disqualified, which was summarily denied.

Chace appealed the denial of the disqualification motion and the Florida appellate court granted the appeal, disqualified the judge and remanded for further hearings to address the previous rulings, which were arguably tainted. The appellate court explained as follows:  “The trial judge’s efforts to initiate ex parte communications with a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge’s neutrality. The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case.”

People v. Armstrong (California Court of Appeal, Jan. 13, 2014)  2014 WL 125939

After Defendant’s conviction for numerous crimes related to domestic violence against his wife, he sought reversal of judgment, alleging prosecutorial misconduct. Shortly before trial, and on the day the trial court ordered the prosecutor to make its key witness, a minor, available for an interview with defense counsel, the prosecutor posted the following comment on her Facebook page: “After I spent the day trying to prevent my 13 year-old star witness from being kidnapped, I found out I am getting the Prosecutor of the Year award from the Victims Service Center.”

The court, which characterized the Prosecutor’s Facebook post as “an incredible display of poor judgment” determined that the post appeared to violate Rule 5–120 of the California Rules of Professional Conduct, which prohibits members of the bar from making extrajudicial statements when “the member knows or reasonably should know that [the extrajudicial statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The prosecutor’s Facebook musings about her key witness presented a substantial likelihood, according to the court, of prejudicing the matter if any juror learned of the comment. However, even though the court admonished the prosecutor for her “foolishness,” the court found no prejudice actually occurred in this instance, thereby not justifying a mistrial.

Rodriguez v. Bank of America (U.S. Dist. Ct., Texas, Jan.  28, 2014)  2014 WL 309065

Plaintiff brought a mortgage-related lawsuit against a major lender for wrongful foreclosure and deceptive trade practices. In opposing Defendant’s summary judgment motion, Plaintiff submitted the LinkedIn profile of the bank employee who signed the deed of trust that conveyed Plaintiff’s mortgage to Countrywide Home Loans, the foreclosing bank. The LinkedIn profile reflected that the employee was not employed by Countrywide, but by another bank at the time the mortgage instrument was signed. However, the district court disallowed the LinkedIn evidence, without significant comment, on the grounds that the Plaintiff failed to properly authenticate the LinkedIn profile.

United States v. Sheikh (U.S. Dist, Ct., North Carolina, Jan. 10, 2014)  2014 WL 6050324

The Government charged Defendant with attempting to provide material support to a terrorist organization, and the Defendant sought a bail hearing for release prior to his trial. Defendant’s social media postings and activity formed the bulk of the evidence cited at the hearing.  Specifically, a FBI agent presented Facebook postings reflecting “that the defendant is comfortable with extreme violence.” Additionally, an undercover FBI agent engaged in conversations with the defendant, where he asserted that he held the al-Nusrah group in high esteem, that he was aware of their terrorist activity and wished to join them and “die a martyr.” In denying bail and pre-trial release, the court citied the Defendant inflammatory social media postings and communications as key evidence.

CrossFit, Inc. v. Alvies (U.S. Dist. Ct., California, Jan. 22, 2014)  2014 WL 6150799

Plaintiff CrossFit, Inc. (“CrossFit”) brought suit for trademark infringement, among other claims. As with seemingly the majority of current trademark, false advertising and other unfair business practices claims, social media formed a large bulk of the evidence. In fact for this case, the entirety of CrossFit’s claims were based upon the content of the Defendant’s Facebook page, which allegedly violated CrossFit’s registered trademarks throughout, culminating in a contentious takedown notice sent to Facebook pursuant to the Digital Millennium Copyright Act (“DMCA”), which Facebook obliged.

This survey group for January only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated, or otherwise resolved last month alone. Without question, the deluge of social media cases continues.
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January 22, 2014 · 1:00 PM

The Benghazi ESI Scandal

Last week, the United States Senate Intelligence Committee issued a bipartisan report finding that the deadly assault on the American diplomatic compound in Benghazi, Libya, which killed US Ambassador Chris Stevens and 3 other Americans, could have been prevented.

Bengazi

The account spreads blame among the State Department, the military and U.S. intelligence for missing what now seem like obvious warning signs in the weeks before the September 11, 2012, attack, including multiple clues and outright threats that appeared on social media — key evidentiary source of Electronically Stored Information (ESI) as defined by the Federal Rules of Civil Procedure.

And therein lies what could be the real scandal of the Benghazi affair – The failure of the US Intelligence Committee to monitor and investigate available social media evidence leading up to the attack in that volatile and dangerous part of the world.  The Senate report notes that “[a]lthough the Intelligence Community (IC) relied heavily on open source press reports in the immediate aftermath of the attacks, the IC conducted little analysis of open source extremist-affiliated social media prior to and immediately after the attacks.” And that there were “reports from the IC indicating that more in-depth intelligence exploitation of social media in the Benghazi area, including web postings by Libyan nationals employed at the Temporary Mission Facility, could have flagged potential security threats to the Mission facility or important information about the employees prior to the September 11, 2012, attacks.”

One of the missed clues identified by the Senate report, which includes 14 independent references to social media evidence, involved a prior May 22, 2012, attack on the Benghazi-based International Committee of the Red Cross (ICRC) building by militants with Rocket Propelled Grenades (RPGs). On May 28, 2012, a previously unknown organization, The Omar Abdurrahman Group, took to social media to claim responsibility for the ICRC attack and issued a direct threat against the United States. It is believed by many intelligence experts, and implied in the Senate report, that the Omar Abdurrahman group was responsible for the September 11, 2012, attacks on the American diplomatic compound.

The Senate report includes a key recommendation that the Intelligence Community “must place a greater emphasis on collecting intelligence and open-source information, including extremist-affiliated social media, to improve its ability to provide tactical warnings…” And separately, the Senate Intelligence Committee recommends that the “IC should expand its capabilities to conduct analysis of open source information including extremist-affiliated social media particularly in areas where it is hard to develop human intelligence or there has been recent political upheaval. Analysis of extremist-affiliated social media should be more clearly integrated into analytic products, when appropriate.”

Ironically, all these pieces of evidence and clues could have been very effectively gathered with specially designed investigation software that runs $945 a seat.

And speaking of written reports issued last week by prominent organizations that address the compelling trend of social media evidence, Gibson Dunn released their 2013 Year-End Electronic Discovery and Information Law Update. In a section dedicated to social media, the Gibson Dunn Update notes that “the number of cases involving social media evidence continues to skyrocket,” and that “Commentators and courts alike have noted that the use of social media evidence has become commonplace across all types of litigation.” The Update covers several cases, many of which have been addressed on this blog, involving key legal issues related to social media. It’s a good read, and is not unlike the Senate Intelligence Committee’s Benghazi report, in that both underscore the critical importance of social media evidence, for both reactive and proactive investigations of many stripes.

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January 15, 2014 · 8:22 AM

eDiscovery Software Industry Faces Transition

changes aheadRecently, the eDiscovery and litigation support field has seen many developments reflecting a significant shift in the eDiscovery software industry. Greg Buckles and Barry Murphy of The eDiscovery Journal report in several articles and notes in the past few weeks that they see a palpable transition away from software back towards services by corporations seeking to address their eDiscovery requirements. So not surprisingly, there had been various reports indicating reductions in force at several of the top eDiscovery software providers.

Not to pick on Guidance Software, my former company, but they are publically traded and recently disclosed their aggressive cost-cutting measures. In their PowerPoint presentation, Guidance states that the eDiscovery software field “is maturing…not as many large deals available there” resulting in a strategy for the company to refocus on core computer forensics and computer security, and to pivot toward profitability over topline revenue growth. And I don’t think what Guidance is experiencing is much different than from what many other eDiscovery software firms in the space are going through.

And neither does industry analyst Barry Murphy. “Based on what I see, KCura with their Relativity product is doing well, and I think there has been some good growth in the mobile forensics space, and X1 has done well with X1 Social Discovery in terms of growth and customer acquisition. Other than that, it seems that the remaining eDiscovery software companies are either contracting or experiencing only very modest growth.”

Part of the problem is that many aggressive enterprise eDiscovery deployments never achieve their promise of global scalability. A little over a year ago, the CEO of another eDiscovery and forensics software firm publicly claimed that enterprise-wide Autonomy implementations for eDiscovery, in his opinion, never really worked that well from what he could see. Without commenting on or taking a position on the accuracy of that assertion, the article does reflect broader frustrations I have heard from IT and in-house counsel about eDiscovery software in general that claims to be an end-to-end solution for aggressive and enterprise-wide deployments. As a result, many corporate legal departments and corporate IT have opted to continue to outsource eDiscovery to service providers over attempting to implement enterprise-wide solutions.

On the other hand, and reflective of this trend, services firms in this space are apparently doing quite well and their numbers are growing. There are clearly hundreds, if not over a thousand consulting firms, in North America providing eDiscovery consulting services. In just one metric, two years since we launched X1 Social Discovery, nearly 200 eDiscovery and computer forensics firms have become paying customers, and many more are currently evaluating. Some firms have a single license of X1, many have multiple, even dozens. I think those figures reflect both the number of service providers in this space and the aggressive spending behavior from the providers.

I also think, and of course being biased, that with X1 Social Discovery gaining over 400 paid install sites in just two years since the launch of the product, with 250 percent increase in annual sales in 2013, is quite an accomplishment especially given the status of this market. I think that reflects both the quality of X1 Social Discovery as well as the compelling use case of the collection and preservation of social media data for discovery and investigative purposes. So I want to take this opportunity to thank our customers for making 2013 a great year for us and driving the further development and enhancements of our products.

I’m looking forward very much to Legal Tech New York this year, both to meet with our customers old and new, and to speak with some fellow executives about how they are adapting to the changes in the eDiscovery market and opportunities in 2014. I hope to see you there!

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December 10, 2013 · 11:12 AM

Social Media Case Law Update — November 2013

Law Journal2As part of our periodic semi-monthly practice, we are checking in on the reported cases involving social media for this past month of November. Based upon reader feedback, I am going to try and make this a regular monthly feature on this blog.  So a quick tally identifies 76 cases where social media evidence played a key role last month, which is consistent with our overall analysis that the volume of cases has about doubled year over year. Keep in mind that the survey group only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated, or otherwise resolved last month alone.

The following are brief synopses of five of the more notable social media cases from November 2013:

 

AvePoint, Inc. and AvePoint Public Sector, Inc. v. Power Tools, Inc.  (U.S. Dist. Ct., Virginia, Nov.  7 2013) 2013 WL 5963034

In this Federal District Court case, software maker AvePoint, Inc., brought a trademark infringement and defamation action against competitor, Axceler, based upon allegedly false and deceptive statements that Axceler and its agents made about Avepoint through Twitter and LinkedIn, including setting up a fake LinkedIn account. AvePoint’s complaint features extensive evidence from Twitter and LinkedIn to establish trademark infringement, unfair business practices and actual confusion (a critical element for trademark infringement claims) amongst third parties.

Specifically, the complaint alleges that the defendant created a bogus account on LinkedIn purportedly for AvePoint representative named Jim Chung, thereby misappropriating the use of plaintiff’s registered trademark.  Emphasizing the confusion caused by the defendant’s actions, the plaintiff noted Jim Chung’s LinkedIn connection list.  The defendant also used Twitter to tweet messages in furtherance of the ruse.  The District Court refused Axceler’s request to dismiss most of the nine counts set out in AvePoint’s complaint, and the case remains pending.

In re Air Crash Near Clarence Center, New York, (U.S. Dist, Ct., New York, Nov. 18, 2013) 2013 WL 6073635

In a consolidated wrongful death action arising out of a fatal commercial airline crash near Buffalo, New York in 2009, the Defendant sought a supplemental production of one of the Plaintiff’s Facebook account, to include any new information and also Plaintiff’s extensive friend list, which was omitted from the previous production. Previously, the Court ordered production of social media account records consisting of more than 2,000 pages, after finding such records relevant to two specific issues in that case—Plaintiff’s domicile and the claimants’ loss of support claims. The Defendant argued that production of Plaintiff’s “friend list”  is relevant to assessing his Disorder, particularly his ability to socialize and communicate with others. The court found the request for production of the friends list to be not relevant to the claims at hand, but did order supplemental production of any new information in the Facebook account created since the prior production.

Shepherd v. McGee (U.S. Dist. Ct., Oregon, Nov.  7, 2013), 2013 WL 5963076

This employment case involved a scenario commonly referred to as a “Facebook firing.”  Jennifer Shepherd, a child protective services worker at the Oregon Department of Human Services (DHS), went to juvenile court six to eight times per month on behalf of children who she believed where being abused or otherwise were not safe in their homes. However, she posted several inflammatory messages to her Facebook page that disparaged many of the families and individuals whose homes she visited in a generalized manner, to wit: “If you physically abuse your child, someone should physically abuse you…If you don’t like my rules, too bad. I have a Ph.D., and you don’t, so I get to make up my own imaginary rules.”

The posts were seen by Shepherd’s Facebook friends, including a defense attorney and Polk County Circuit Court Judge. A DHS manager forwarded the posts to Ken McGee, an HR manager. McGee thought the posts reflected her own bias, which, in her position, she was supposed to put aside.  Shepherd was placed on leave and then terminated.

Deputy District Attorney Max Wall said Shepherd’s Facebook musings “would also likely require questioning as to her viewpoints on the abuse of children each time plaintiff took the stand in such a case and would likely hamper current and future cases.” Department of Justice Senior Assistant Attorney General Brian Raymer believed that Shepherd was “terminally and irrevocably compromised” and said her Facebook posts would prevent him from ever calling her as a witness. In his opinion, her statements would create trust issues with DHS clients and would reflect adversely on DHS in the relevant local community.

The court determined that the termination was justifiable and legal, noting that “Wall’s and Raymer’s declarations establish actual, material and substantial disruption to their working relationships with plaintiff.” The court concluded, “The government employer does not have to compromise its function by allowing the employee to actually cause disruption or fail to perform his or her job duties in order to establish an impairment in efficient operations.”

Hawkins v. College of Charleston, (U.S. Dist, Ct., South Carolina, Nov. 15, 2013) 2013 WL 6050324

Plaintiff alleged discrimination against College of Charleston in violation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. Prior to the filing of litigation, but during a time when the court determined litigation was reasonably foreseeable, Plaintiff deleted his Facebook account, resulting in what the court determined to be wrongful spoliation, and accordingly the Defendant College of Charleston moved to dismiss the action. The Court determined, however, that while the Facebook evidence was relevant to the case, it was “not central.” Additionally, the court found that while the Plaintiff, who suffers from cystic fibrosis and depression, intentionally deleted his Facebook account, he did not do so to prejudice his litigation, but to “rid his online profile of a painful time in his life.” Nonetheless, the court determined that a lesser penalty short of dismissal, such as an adverse inference instruction, was appropriate and would be imposed at a later time.

Bosh v. Cherokee County Governmental Building Authority  (U.S. Dist. Ct., Oklahoma, Nov.  22, 2013)    2013 WL 6150799

Plaintiff filed claims for civil rights violations arising out of alleged excessive force incident at Cherokee County Detention Center (“CCDC”). Plaintiff sought limited production of Facebook evidence related to the incident from one of the Defendants who apparently shared or transmitted information about the incident through his Facebook account. Separately, the Plaintiff sought full production of essentially Plaintiff’s entire Facebook account. While granting the first limited request, the court denied the broader request, deeming it “to be a thinly veiled attempt to gain permission to embark on a ‘fishing expedition’” into the Defendant’s Facebook account. The judge further reasoned that while “the Court is sensitive to Plaintiff’s concerns regarding compliance with this Order, Plaintiff has presented the Court with no reason to believe Defendant Chronister or his counsel of record, who is an officer of this Court in good standing, will neglect their legal or ethical obligations to faithfully comply with this Court’s orders.”

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November 18, 2013 · 9:21 AM

Dr. Michael Levitt: World Famous Scientist, Nobel Laureate, and X1 Power User

Michael Levitt Nobel Prize in Chemistry 2013

Michael Levitt
Nobel Prize in Chemistry 2013

Recently I had the distinct honor of speaking with Dr. Michael Levitt, a 2013 Nobel Prize winner for Chemistry, and highly regarded Professor of Structural Biology at Stanford University. The Nobel Committee awarded Dr. Levitt a Nobel in recognition of his research in computational biology, “for the development of multiscale models for complex chemical systems.” He is also a “huge fan” of X1. When Dr. Levitt and I spoke, he discussed his daily use of X1 Search and how it is essential to his research and professional productivity. “X1 saves me many hours per week,” per his unsolicited email to us at X1 that initiated our dialogue, “I cannot survive without it.”

A computer-savvy scientist, Dr. Levitt relies on a Macintosh laptop with VMWare virtualization running a Windows OS, where he stores 200 gigabytes of data, including 40 gigabytes of over 300,000 emails, and of course relies on X1 to make sense of it all. “Next to my computer itself, X1 is the one tool I can’t do without,” explained Dr. Levitt.  “People use the term ‘big data’ a lot these days, but the most important ‘big data’ for me is the 200 gigabytes on my laptop that consists of decades of research, important communications with fellow academics, and other key resources.  X1 enables me to find what I am looking for instantaneously. It is a very effective interface to all of my information.”

Dr. Levitt credits X1’s lightning-fast, iterative and faceted search capability, along with X1’s reliability and stability, as enabling him to quickly and tactically sift through 200 gigabytes of emails and academic research. “X1 is an intimate part of my workflow — it is essentially an extension of my mind when I engage in information retrieval, which is many times an hour during my workday.”

In addition to locating his research and other critical data, X1 proved very handy to Dr. Levitt in managing an important email response project. “When I was awarded the Nobel, I received over two thousand congratulatory emails. I used X1 to cross reference my sent folder to make sure I replied to them all. That X1 shortcut saved me several hours alone!”

Dr. Levitt’s testimonial echoes similar sentiments expressed by many high-powered business professionals at top financial institutions, major law firms, consulting companies and science and engineering firms. They all rely on X1 to dramatically enhance their productivity by quickly locating their information amongst an ever-increasing avalanche of emails and other data.

We here at X1 extend our congratulations to Dr. Levitt for his 2013 Nobel prize in Chemistry, as well as our sincere thanks to him for reaching out to us and sharing his enthusiastic feedback on X1 search, which, incidentally, is completely gratis. “Just keep developing great software” is all he asked for in return.

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For more information about X1 Search 8, including a free 14 day trial, please visit here >

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