Social Media. e-discovery and Litigation Issues in the Advanced Age of Technology. September 26-29, 2010 ACI-NA 19 th Annual Conference and Exhibition

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1 Social Media and Litigation Issues in the Advanced Age of Technology

2 TOPIC When Worlds Collide Litigation 3 1 Social Media 2

3 EARLY ESI MANAGEMENT Kircoska v. United States (circa 1970) Request for Production No. 1 Please produce any and all documents, including ESI, concerning, referring or relating to the Secretary s knowledge of Anna Kircoska Mission: Impossible ( ) [http://www.youtube.com/watch?v=ma2kmjmkfrq]

4 Why we can t do that today The Honorable Judge Shira Scheindlin United States District Court for the Southern District of New York *********** Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) (Five Opinions) The Pension Comm. of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 U.S. Dist LEXIS 4546 (S.D.N.Y. 2010)

5 Overview ediscovery is a symptom of humans being natural packrats. you never know when you might need something. might as well save it. oops.

6 What ESI is Covered Traditional Electronic Files s, Word, Excel, PowerPoint, PDF, TIFF Messaging Texts, IMs, voic , tweets Computers Mainframes, servers, desktops, laptops Storage Devices Backup tapes, CDs, DVDs, flash drives PDAs iphones, BlackBerries, cell phones Tapes (Video, Audio)

7 Where to Look Personnel Key players Former employees Consultants ( practical ability to obtain ) Sources Servers, desktops, laptops (obviously) Loaner laptops Home computers Work & Personal Cell Phones/PDAs Backup Tapes (Accessible) Exception: disaster restoration only Exception: sole source for key players

8 Preservation Obligations When Litigation is Reasonably Expected Settlement discussions do not trigger Plaintiff s obligation arises before filing Issue Timely Litigation Hold Broad enough to capture discoverable ESI Immediately cease automatic deletion Remove backup tapes from rotation Label sources to prevent discard/wipe Periodic monitoring Cannot place complete reliance on employees Must have attorney oversight/process review Consider Evidentiary Implications

9 Collection Considerations Employees Cannot Self-collect Data Locations File save protocols may not be observed Personal hard drives Local pst files servers Accessible network drives Proprietary software (databases, etc.) Forensic Imaging vs. Targeted Search File extension modification issues Chain of Custody

10 Processing, Review & Analysis Processing Costs Based on Size (GB) Ex: 40 images 8 TB $300/GB» $2.4MM Absolutely pre-process De-NIST, filter» 50% - 90% reduction Early Case Assessment Better search terms, less useless data Monthly Hosting Based on Size (GB) Ex: 8TB» 1TB» 500GB $50/GB/Mo» $25,000/Mo (2yr)» $600,000 Privilege/Responsiveness Review Ex: 40,000 p/gb 10 sec $100/hr» $5MM

11 Why is This Important? Spoliation of Evidence Negligence No management supervision Poor search terms Gross Negligence Lack of a timely, written litigation hold Lack of collection from key players Fail to preserve: key players, backup tapes Fail to cease automatic deletion Sanctions Financial penalties»»» adverse inference

12 Social Media Why is Social Media Different? Doesn t reside on target computers!!! No real practical ability to obtain Often a compilation of multiple features Messages, postings, comments, blogs Pictures, videos Groups, causes, activities May be deleted without remnants Subject to Secured Communications Act May be public, private or combination Providers cannot be compelled to produce Privacy rights despite ESI policy

13 Social Media Evidentiary Complications Difficult to obtain social media Stored Communications Act Password protection Search.twitter.com Facebook pages Availability limitations Difficult to authenticate Source, timing Witnesses Fact or expert?

14 Social Media Substantive Complications Assumed Responsibility Notice Twitter: The case of Paul Chambers Facebook: Harassment YouTube

15 Social Media One Dumb Tweet Could Ruin This Joker s Life Anyone with the sense the Good Lord gave 'em should know that our current reality does not tolerate even the most ludicrous jokes about bombs or other forms of destruction not at the airport, not over social media and especially not bomb jokes about airports issued over social networks. But if one does happen to forget that good sense, and make such a joke, do they really deserve to have their life ruined? That's what pretty much what's happening to Paul Chambers, a U.K. resident found guilty and fined after posting this comment on Twitter in January: Robin Hood airport is closed, you ve got a week and a bit to get your s--t together, otherwise I m blowing the airport sky high!! Chambers returns to court Friday to appeal the verdict and clear his name, reports U.K.- based tech site The Next Web, which has been following the case since the beginning. While this tweet seems a familiar sentiment to anyone whose travel plans were foiled by a snowed-in airport, the U.K. courts still found Chambers guilty of "sending by a public communications network a message that was grossly offensive or of an indecent, obscene or menacing character," The Next Web reports. Helen A.S. Popkin

16 Social Media What Do You Do Now?

17 Social Media In Closing Roger Over Airplane (1980) [http://www.youtube.com/watch?v=fvq4_hhbk8y]

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