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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October 26, 2012 · 8:36 AM

The Challenge of Defensible Deletion of Distributed Legacy Data

According to industry studies, it is common for companies to preserve over 250,000 pages and manually review over 1,000 pages for every page produced in discovery. However, when companies cull down their information through systematic execution of a defensible retention schedule, they dramatically reduce the costs and risks of discovery and greatly improve operational effectiveness. The challenge is to operationalize existing information retention and management policies in an automated, scalable and accurate manner, especially for legacy data that exists in many different information silos across larger organizations that face frequent litigation.

This is much easier said than done. Most all archiving and information systems are built on the centralization model, where all the data to be searched, categorized and managed needs to be migrated to a central location. This is fine for some email archives and traditional business records, but does not address the huge challenge of legacy data and other information “in the wild.” As leading information management consulting firm Jordan Lawrence pointed out on our recent webinar, organizations cannot be expected to radically change how they conduct business by centralizing their data in order to meet information governance requirements. Knowledge workers typically create, collaborate on and access information in their group and department silos, which are decentralized across large enterprises. Forcing centralization on these many pockets of productivity is highly disruptive and rarely effective due to scalability, network bandwidth and other logistical challenges.

So what this leaves is the reality that for any information remediation process to be effective, it must be executed within these departmentalized information silos. This past week, X1 Discovery, in conjunction with our partner Jordan Lawrence presented a live webinar where we presented a compelling solution to this challenge. Jordan Lawrence has over 25 years experience in the records management field, providing best practices, metrics and deep insights into the location, movement, access and retention of sensitive and personal information within the enterprise to over 1,000 clients.

In the webinar, we presented a comprehensive approach that companies can implement in a non-disruptive fashion to reduce the storage costs and legal risks associated with the retention of electronically stored information (ESI). Guest speaker attorney and former Halliburton senior counsel Ron Perkowski noted that organizations can avoid court sanctions while at the same time eliminating ESI that has little or no business value through a systematic and defensible process, citing Federal Rule of Civil Procedure 37(e) (The so-called “Safe Harbor Rule” and the case of FTC v. Lights of America, (C.D. Cal. Jan. 2012)

Both Ron Perkowski and Jordan Lawrence EVP Marty Provin commented that X1 Rapid Discovery represents game-changing technology to effectuate the remediation of distributed legacy data due to its ability to install on demand virtually anywhere in the enterprise, including remote data silos, its light footprint web browser access, and intuitive interface. X1 Rapid Discovery enables for effective assessment, reporting, categorization and migration and remediation of distributed information assets by accessing, searching and managing the subject data in place without the need for migration to the appliance or a central repository.

> The recording of the free webinar is now available here.

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September 25, 2012 · 8:19 PM

National White Collar Crime Center Launches Certified Training for X1 Social Discovery

This past month, the National White Collar Crime Center (NW3C), an internationally recognized leader in education and support in the prevention and prosecution of high-tech crime, announced a strategic partnership with X1 Discovery to provide training and support to local, state and federal law enforcement agencies worldwide, as well as to legal, corporate discovery and risk professionals. The partnership will focus on promoting best practices and advanced techniques for website and social media evidence collection and analysis, based upon the X1 Social Discovery software.

Training and certification on a computer investigation process is very important to help bolster the qualifications of a testifying witness. A great example of this is the “on point” case of State v. Rossi, where an Ohio appellate addressed the issue of authentication of social media evidence and involved the expert testimony of a police detective, where the defense unsuccessfully challenged his qualifications as a computer forensics expert. Here is the key quote from the court:

“Det. Roderick testified that he received forensic computer training from the FBI and National White Collar Crime Center. Accordingly, the trial court did not err by
allowing Det. Roderick to testify as an expert in forensic computer investigations.” (Emphasis added)

As State v. Rossi tackles social media evidence, best practices for its collection (which were not followed by the defense), the issues of training, expert testimony, and the credibility of NW3C, the case serves as “Exhibit A” for the importance of the NW3C and X1 Discovery relationship.

NW3C has now posted their first schedule of classes online, available here. The classes are open to both law enforcement and private sector professionals. The training curriculum will provide best practices and new methods to collect, search, preserve and manage social media evidence from social media networking sites and other websites in a scalable, instantaneous and forensically sound manner. Participants will learn about specific cases involving critical social media data; find out how to collect and index thousands of social media items in minutes; understand and identify key metadata unique to social media; learn how to better authenticate social media evidence in a safe and defensible manner; and more. Attendees who complete the course will received a certificate of authorized training on the X1 Social Discovery software, which is designed to effectively address social media content from the leading social media networking sites such as Facebook, Twitter and LinkedIn. In addition, it can crawl, capture and instantly search content from any website.

The cost of the 1-day training is $595, which is a great investment in your credentials and career as an expert witness and computer investigation professional.


 > Learn more about this “hands-on” training in our live webinar

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