Social Media & ediscovery: Untangling the Tweets for the Trials

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1 Social Media & ediscovery: Untangling the Tweets for the Trials Jack Halprin, Esq. Vice President, ediscovery & Compliance POWER PROTECT PROMOTE

2 Agenda Social Media Sites: What, Who, Where & How Discoverability Social Media in the Courts Social Media: Rules & Regulations Handling Social Media Social Media Challenges Technology for Handling Social Media The Need for Advanced Technology Recent Case Law on Preservation Obligation Summary & Best Practices

3 Social Media Sites: What, Who, Where & How? Social Media Sites (SMS): online services or platforms that focus on building and reflecting social networks or relations among people Facebook: More than 500 million users with 150 million active mobile users Twitter: More than 190 million visitors per month, 90+ million tweets per day and 20 billion total tweets MySpace: More than 122 million active users per month LinkedIn: More than 70 million members in over 200 countries with executives from all Fortune 500 companies YouTube: More than 2 billion videos viewed per day

4 Discoverability Social media sites fall within definition of a document and can be discoverable if relevant: The Federal Rules of Civil Procedure (FRCP) defines a document as any designated documents or electronically stored information. (FRCP Rule 34[a][1][A]) The UK Civil Procedure Rules (CPR) define documents as anything in which information of any description is recorded, CPR Part 31.4, and the Practice Direction includes and other electronic communications. (PD31B, Section 5(3)) SMS can also be discoverable in Canada and other jurisdictions.

5 Social Media in the Courts Case law is evolving rapidly with new published decisions on a regular basis. Some notable cases include: Crispin v. Christian Audigier, Inc., 2010 WL (C.D. Cal., May 26, 2010) Court found the Stored Communications Act (SCA) applicable but noted the distinction between private messages and public posts for which the SCA was inapplicable. EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML 1223 (S.D. Ind., May 11, 2010) The court required plaintiff to produce relevant data from social media sites, such as Facebook and MySpace. Canadian Cases: The Canadian courts have frequently addressed the issue of social media. Leduc v. Roman (2009 Can LII 6838 [ON S.C.]) SMS data is discoverable, but drew distinction between public and private data. Kent v. Laverdiere (2009 Can LII [ON S.C., Apr. 14, 2009]) Goodridge v. King (2007 Can LII [ON S.C., Oct. 30, 2007]) Kourtesis v. Horis (2007 Can LII [ON S.C., Sept. 24, 2007])

6 Social Media in the Courts: No Expectation of Privacy Romano v. Steelcase, Inc., 2010 WL (N.Y. Sup., Sept. 21, 2010) Social media data was material and necessary to the defense of this action and included deleted pages. [P]rivacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking. Ledbetter v. Wal-Mart Store, Inc., No. 06-cv WYD-MJW (D. Colo., Apr. 2009) Protective order refused because information sought was reasonably calculated to lead to the discovery of admissible evidence and is relevant to the issues in the case. McMillen v. Hummingbird Speedway, No CD (C.P. Jefferson, Sept. 2010) Court refused to recognize new privilege: il any expectation of privacy would be unrealistic. i Beye v. Horizon Blue Cross Blue Shield of NJ, (D. NJ. Dec. 14, 2007) Parties ordered to share writings, including entries on SMS sites, noting limited privacy concerns. See also: McCann v. Harleysville Insurance Co. of New York, 910 N.Y.S.2d 614 (2010) N.Y. App. Div. LEXIS 8396 (N.Y. App. Div., Nov. 12, 2010) City of Ontario v. Quon, 130 S. Ct (2010)

7 Social Media: Rules & Regulations FINRA Regulatory Notice (January 2010) Requires financial services firms to monitor and maintain records on social media site usage and interactions SEC Release No Explains liability for information on company web sites Includes public disclosure for Regulation FD purposes Electronic Communications Privacy Act (ECPA, 18 U.S.C to 2712) & Stored Communications Act (18 U.S.C to 2712) Extends government restrictions on wire taps to include transmissions of ESI by computer SCA addresses disclosure of electronic communications held by third-party ISPs. Federal Courts Federal Judicial Center: Social Networking Guidelines United States District Court for the District of Rhode Island Social Media Policy Bar Associations NY City Bar Op. No (Sept. 2010) Philadelphia Bar Op. No (Mar. 2009) More rules and regulations are coming

8 Handling Social Media Block, Punt or Tackle? Block: Prevent employee access Employees will find work-arounds Most organizations need SMS for business purposes Punt: Do nothing, no regulation or policy Opens the organization to risk Data is not controlled as part of corporate policy Tackle: Add social media to corporate information governance plan Social media is here to stay Data can be discoverable Risk of sanctions, adverse rulings and negative effects

9 Social Media Challenges Social media can be discoverable and should be managed as part of an ongoing and comprehensive Information Governance program. Though another form of ESI, there are unique challenges: Complexity Volume and high usage Informality and conversational nature Anonymity Transient and dynamic nature Slang, abbreviations and use of code More than 100 languages Hard to control and manage Manual processes cannot scale and automation is required. An understanding of meaning, concepts and context would help in managing these data sources. Example: What does roflmao mean?

10 Technology for Handling Social Media The challenges of SMS include volume, web content, and conversational text and slang. Utilizing the right technology to search and analyze the technology is essential. Key considerations for technology to manage SMS: Limitations of keyword search Language independence Ability to dynamically understand slang and abbreviations Scalability and ability to manage large data volumes Automation and advanced search Ability to analyze rich media including audio and video

11 The Need for Advanced Technology Case law and research around search technology have pointed to the challenges of legacy search (keyword, Boolean and metadata) and the advantages of advanced search (concept search, contextual analysis, automated clustering): Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md., 2008) Magistrate Judge Grimm wrote that all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search... Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 242 F.R.D. 139 (D.D.C., 2007) Magistrate Judge Facciola noted, I bring to the parties attention recent scholarship that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results. Asarco, Inc. v. United States Envt l Prot. Agency, 2009 WL (D.D.C., Apr. 28, 2009) The plaintiff contended that the defendant s keyword search was conducted in bad faith, and the court ordered ed an additional a keyword search utilizing four additional a key terms. The court stated that keyword searches are no longer the favored methodology.

12 Recent Case Law Highlights on Preservation Obligation Pension Committee v. Banc of America Securities (2010 WL [S.D. N.Y., Jan. 15, 2010]) By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve and to search in the right places will inevitably result in spoliation. Rimkus Consulting Group v. Cammarata (2010 WL [S.D. Tex., Feb. 19, 2010]) The extent of the duty to preserve requires a careful analysis of the facts and circumstances. Victor Stanley 2: Victor Stanley, Inc. v. Creative Pipe, Inc. (No. MJG [September 2010]) Judge Grimm explicitly held that courts must consider issues of proportionality and reasonableness of the alleged spoliator s conduct in determining whether there has been a breach of the preservation duty. Orbit One Communications, Inc. v. Numerex Corp., (2010 WL [S.D. N.Y., Oct. 26, 2010]) Taking a different view of reasonableness and proportionality, and in opposition to Pension Committee, Judge Frances held that until a more precise definition is created by rule, a party is well-advised to retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches.

13 Summary & Best Practices SMS can be discoverable Privacy and private profiles can be discoverable. SMS should be covered under the organization s Information Governance plan Be proactive and address issues before it becomes a problem. Technology can help if deployed properly Banks and financial institutions need to address immediately. Other organizations should be proactive. Look for advanced search technology that can handle the conversational nature of such communications.

14 Thank You! For more information please contact: Jack Halprin, Esq. VP, ediscovery & Compliance POWER PROTECT PROMOTE (310)

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