EDISCOVERY: A COMPREHENSIVE VIEW AND SOCIAL MEDIA IMPACT

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1 EDISCOVERY: A COMPREHENSIVE VIEW AND SOCIAL MEDIA IMPACT

2 JOSEPH J. BAMBARA IN HOUSE COUNSEL UCNY,INC. NEW YORK, NEW YORK WEB: TWITTER:

3 NATALIE S. FEHER, ESQ. EDISCOVERY COUNSEL COMPLETE DISCOVERY SOURCE 345 PARK AVENUE NEW YORK, NY (212) (646) (MOBILE) WEB:

4 EDISCOVERY: COMPREHENSIVE VIEW EDISCOVERY NATURE OF CLAIMS: THE NEED TO UNDERSTAND THE CLAIMS OR DEFENSES IN ORDER TO REQUEST OF LIMIT THE RELEVANT ELECTRONICALLY STORED INFORMATION THAT PERTAINS TO THE MATTER. SCOPE OF EDISCOVERY: FOCUS ON THE APPLICABLE PROCEDURAL RULES WHICH LIMIT THE ESI THAT CAN BE REQUESTED PURSUANT TO DISCOVERY RULES. LEGAL HOLD: WILL FOCUS ON THE OBLIGATION OF PARTIES TO PRESERVE ESI WHEN A TRIGGERING EVENT OCCURS AND THE MYRIAD OF LEGAL DIRECTIVES IN INSTITUTING A LEGAL HOLD TO ENSURE ESI IS NOT DESTROYED. SEARCH METHODS AND PROTOCOL FOR ESI; INSPECTION OF COMPUTER SYSTEMS AND THE CHAIN OF CUSTODY TO ENSURE AUTHENTICITY OF ESI AND OTHER ISSUES THAT COULD AFFECT ITS ADMISSIBILITY. FORMS OF PRODUCTION INCLUDING NATIVE FILES, JPEG AND PDF AS WELL AS THEIR EFFECT ON EDISCOVERY.

5 EDISCOVERY EDISCOVERY: COMPREHENSIVE VIEW LIMITATIONS AND PROTECTIONS AFFORDED LITIGANTS IN EDISCOVERY PROCEEDINGS. OBJECTIONS BASED ON ESI NOT BEING REASONABLE ACCESSIBLE, BURDENSOME, RELEVANCE, OVERBROAD, COST ALLOCATION/PROPORTIONALITY, SAMPLING AND THEIR EFFECT ON ESI DISCLOSURE. SPOLIATION OF ESI INCLUDING CULPABILITY AND RELEVANCE. SANCTIONS INCLUDING AN ADVERSE INFERENCE INSTRUCTION, MONETARY AWARDS AND EVEN CRIMINAL PENALTIES INCLUDING JAIL.

6 SOCIAL NETWORKS AND EDISCOVERY FACEBOOK, TWITTER & GOOGLE PLUS: E-DISCOVERY ESSENTIALS FOR ESI CONFIDENTIALITY, SECURITY & E-DISCOVERY RISKS ASSOCIATED WITH SOCIAL NETWORKS CHALLENGES IN PRESERVING AND COLLECTING DATA FROM SOCIAL MEDIA SITES CORPORATE SOCIAL NETWORKING: HOW EACH SITE CREATES ITS OWN ESI HURDLE E-DISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT HOW TO PRESERVE & COLLECT TWEETS, FACEBOOK POSTS, AND OTHER CONTENT WHAT COMPANIES CAN DO TO LIMIT THEIR E-DISCOVERY BURDENS WITH SOCIAL NETWORKING KEYS TO INCORPORATE AN INFORMATION RETENTION PROGRAM THAT INCLUDES SOCIAL NETWORKS DUTY OF PRESERVATION: SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT ATTORNEY CLIENT PRIVILEGE CONCERNS WITH SOCIAL NETWORKS-WHAT YOUR CLIENT CAN & CAN'T DO HOW TO COLLECT DATA WHEN IT'S OUT OF THE COMPANY'S CONTROL KEYS TO MINIMIZE LIABILITY WITH CLIENT/ATTORNEY COMMUNICATION HOW TO USE FACEBOK, GOOGLEPLUS & SOCIAL MEDIA FOR E-DISCOVERY INVESTIGATIONS

7 FIRST A NOTE ABOUT THIS SESSION WHY IS EDISCOVERY SO IMPORTANT? EVERY MATTER INVOLVES SOME TYPE OF ELECTRONIC DATA. FUNDAMENTAL CHANGES IN HOW PEOPLE MANAGE INFORMATION. ESI CAN BE YOUR BEST FRIEND OR WORST ENEMY. CURRENT DEVELOPMENTS IN THE PRACTICE OF LAW GIVE THOSE WITH EDISCOVERY KNOWLEDGE AN ADVANTAGE.

8 THE ETHICS OF EDISCOVERY IT IS IMPORTANT TO UNDERSTAND THE ETHICAL OBLIGATIONS OF ATTORNEYS SINCE OFTEN TIMES PARALEGALS ARE RUNNING THE SHOW: MRPC 1.1 A LAWYER SHALL PROVIDE COMPETENT REPRESENTATION TO A CLIENT COMMENTS: TO MAINTAIN THE REQUISITE KNOWLEDGE AND SKILL, A LAWYER SHOULD KEEP ABREAST OF CHANGES IN THE LAW AND ITS PRACTICE, INCLUDING THE BENEFITS AND RISKS ASSOCIATED WITH RELEVANT TECHNOLOGY MRPC 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL MRPC 1.6 CONFIDENTIALITY OF INFORMATION MRPC 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS DUTY TO COOPERATE UNDER FRCP 26(F) AND STATE EQUIVALENTS.

9 THE EDRM: A FLUID MODEL

10 THE 2006 EDISCOVERY AMENDMENTS THE DEFINITION OF WHAT IS DISCOVERABLE: FRCP 26(A)(1), 33, AND 34; DEALING WITH ESI EARLY: FRCP 16(B), 26(A), 26(F) AND FORM 35; DESIGNATING THE FORMAT OF ESI: FRCP 34(B) AND FRCP 45; DISCOVERY FROM SOURCES THAT ARE NOT REASONABLY ACCESSIBLE: FRCP 26(B)(2); POST-PRODUCTION CLAIMS OF PRIVILEGE: FRCP 26(B)(5); INTERROGATORIES AND PRODUCTION REQUESTS: FRCP 33, 34(A), AND (B). SAFE HARBOR FOR INADVERTENT SPOLIATION: FRCP 37(E); SUBPOENAS: FRCP 45. ALSO SEE: FEDERAL RULE OF EVIDENCE 502(B) LIMITATIONS OF AC/WP PRIVILEGE WAIVER

11 STRATEGIES FOR ASSESSING AN EDISCOVERY PROJECT THE CASE ITSELF: WHAT ARE THE UNDERLYING FACTS? WHAT IS THE CASE WORTH? WHAT IS THE TRIGGERING EVENT FOR PRESERVATION? DATE RANGES/KEY WORDS/CUSTODIANS? IDENTIFY YOUR CLIENT S INTERNAL RESOURCES PROPORTIONALITY IS A KEY CONCEPT IN EDISCOVERY. Having to switch vendors or change gears mid-case can cause significant delays, unnecessary costs, and threats to defensibility.

12 THE LEGAL PROFESSIONAL AS EXPLORER

13 EARLY CASE ASSESSMENT AND PREPARATION LEGAL HOLD NOTICE - CONTENT DIFFERS BASED ON CASE FACTS AND CIRCUMSTANCES GENERAL GUIDELINES: - SHOULD BE CONCISE AND WRITTEN IN PLAIN ENGLISH - DESCRIBE SUBJECT MATTER OF CASE - DATE RANGES OF ESI TO BE PRESERVED - COUNSEL SHOULD MONITOR COMPLIANCE REGULARLY - LEGAL HOLD NOTICES MAY BE SUBJECT TO DISCOVERY AND SHOULD BE DRAFTED ACCORDINGLY.

14 EARLY CASE ASSESSMENT AND PREPARATION THE MEET AND CONFER WHAT TO CONSIDER IN ADVANCE AND ESTABLISH BETWEEN THE PARTIES PRESERVATION, IDENTIFICATION, SCOPE AND FORM CLAW BACK AGREEMENT PROTECTIVE ORDER FOR HIGHLY CONFIDENTIAL/PROPRIETARY INFORMATION RELEVANT IT PERSONNEL SHOULD BE PREPARED FOR POTENTIAL WITNESS TESTIMONY REGARDING COMPUTER SYSTEMS AND ESI PROCEDURES PRELIMINARY CONFERENCE COOPERATION IS KEY AVOID DISCOVERY ABOUT DISCOVERY

15 ZUBULAKE V. UBS WARBURG SCOPE OF A PARTY'S DUTY TO PRESERVE ELECTRONIC EVIDENCE DURING THE COURSE OF LITIGATION; DUTY TO MONITOR THEIR CLIENTS' COMPLIANCE WITH ELECTRONIC DATA PRESERVATION AND PRODUCTION; DATA SAMPLING; THE ABILITY FOR THE DISCLOSING PARTY TO SHIFT THE COSTS TO RESTORE LOST DATA SANCTIONS FOR THE SPOLIATION (OR DESTRUCTION) OF ELECTRONIC EVIDENCE. ZUBULAKE V. UBS WARBURG, 217 F.R.D. 309 (S.D.N.Y. 2003). ZUBULAKE V. UBS WARBURG, 220 F.R.D. 212 (S.D.N.Y. 2003). ZUBULAKE V. UBS WARBURG, 2004 WL (S.D.N.Y. JULY 20, 2004).

16 CASE LAW UPDATE IMPORTANT RECENT OPINIONS PRESERVATION/SPOLIATION VOOM HOLDINGS LLC V. ECHOSTAR SATELLITE LLC, 2012 WL (N.Y. APP. DIV. JAN. 31, 2012). DISCOVERABLE INFORMATION THOMPSON V. AUTOLIV ASP, INC., NO. 2:09-CV PMP-VCF, 2012 WL (D. NEV. JUNE 20, 2012). GOOD FAITH STANDARD PETER KIEWIT SONS, INC. V. WALL STREET EQUITY GROUP, INC., NO. 8:10CV365, 2012 WL (D. NEB. MAY 18, 2012). REASONABLE EFFORTS D ONOFRIO V. BOROUGH OF SEASIDE PARK, NO (AET), 2012 WL (D.N.J. MAY 30, 2012). PROPORTIONALITY PIPPINS V. KPMG LLP, NO. 11 CIV (CM)(JLC), 2011 WL (S.D.N.Y. OCT. 7, 2011). PROCESS FOR IDENTIFYING RESPONSIVE DOCUMENTS DA SILVA MOORE V. PUBLICIS GROUPE & MSL GROUP, NO. 11 CIV (ALC) (AJP) (S.D.N.Y. FEB. 24, 2012).

17 PREVAILING PARTY COSTS SUBSECTION 4 OF SECTION 1920 UNDER FRCP 54(D)(1) PERMITS THE CLERK OR COURT TO TAX AS COSTS [F]EES FOR EXEMPLIFICATION AND COSTS OF MAKING COPIES OF ANY MATERIALS WHERE THE COPIES ARE NECESSARILY FOR USE IN THE CASE. NOT YET CLEAR WHAT THIS CONSTITUTES IN THE CONTEXT OF ELECTRONIC DISCOVERY. RACE TIRES AMERICA, INC. V. HOOSIER RACING TIRE CORP., 3RD CIRCUIT COURT OF APPEAL CONSIDERED WHETHER SECTION 1920(4) AUTHORIZED THE DISTRICT COURT TO TAX AN E-DISCOVERY VENDOR S CHARGES FOR DATA COLLECTION, PRESERVATION, SEARCHING, CULLING, CONVERSION AND PRODUCTION AS EXEMPLIFICATION OR THE COST OF MAKING COPIES THE COURT CONSTRUED NARROWLY AND DETERMINED THE PREVAILING PARTY WAS ONLY ENTITLED TO A SMALL FRACTION OF COSTS ANYTHING THAT WAS TECHNICALLY MAKING COPIES - BUT NOTHING ELSE JARDIN V. DATALLEGRO, INC. DISTRICT COURT IN SOUTHERN DISTRICT OF CA AWARDED PREVAILING PARTY COSTS UNDER THIS SECTION FOR CONVERTING ELECTRONIC DATA TO TIFF, BUT ALSO FOR PHYSICAL PRODUCTION OF DATA SOLUTION? INCLUDE LANGUAGE IN THE CONTRACT THAT PROVIDES AN ENTITLEMENT TO RECOVER ALL EXPENSES AND COSTS INCURRED AS A PREVAILING PARTY

18 BEST PRACTICES & COST CUTTING Riskiest Area 15% of Cost Costliest Area 25% of Cost Preservation Processing Information Management Identification Review Production Presentation Collection Analysis 60% of Cost Planning Execution Electronic Discovery Reference Model / 2009 / edrm.net

19 DEVELOPMENTS IN TECHNOLOGY PREDICTIVE CODING CASE LAW Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group No. 11 Civ (ALC) (AJP) (S.D.N.Y. Feb 24, 2012) Employment macer alleging discriminaion and related claims The predicive coding guinea pig A unique case of cooperaion and disagreement We agree on the benefits of coding, just not the process implemented in this case Technology- assisted review is as effecive, if not more so, than manual review. Defendant s transparency weigh in favor of process defensibility What are some of the important lessons to be learned from this case?

20 SOCIAL NETWORKS AND EDISCOVERY FACEBOOK, TWITTER & GOOGLE PLUS: E-DISCOVERY ESSENTIALS FOR ESI CONFIDENTIALITY, SECURITY & E-DISCOVERY RISKS ASSOCIATED WITH SOCIAL NETWORKS CHALLENGES IN PRESERVING AND COLLECTING DATA FROM SOCIAL MEDIA SITES CORPORATE SOCIAL NETWORKING: HOW EACH SITE CREATES ITS OWN ESI HURDLE E-DISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT HOW TO PRESERVE & COLLECT TWEETS, FACEBOOK POSTS, AND OTHER CONTENT WHAT COMPANIES CAN DO TO LIMIT THEIR E-DISCOVERY BURDENS WITH SOCIAL NETWORKING KEYS TO INCORPORATE AN INFORMATION RETENTION PROGRAM THAT INCLUDES SOCIAL NETWORKS DUTY OF PRESERVATION: SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT ATTORNEY CLIENT PRIVILEGE CONCERNS WITH SOCIAL NETWORKS-WHAT YOUR CLIENT CAN & CAN'T DO HOW TO COLLECT DATA WHEN IT'S OUT OF THE COMPANY'S CONTROL KEYS TO MINIMIZE LIABILITY WITH CLIENT/ATTORNEY COMMUNICATION HOW TO USE FACEBOK, GOOGLEPLUS & SOCIAL MEDIA FOR E-DISCOVERY INVESTIGATIONS

21 SOCIAL NETWORKS AND THE LAW SOCIAL NETWORKS AN INTRODUCTION SOCIAL NETWORKING THE FABRIC OF THE CURRENT INTERNET GENERATION. SOCIAL NETWORKING SITES POPULAR AND USEFUL AT CONNECTING PEOPLE AND PUBLISHING THEIR PROFILES TECHNOLOGY VENDORS HAVE EVEN CREATED SOCIAL APPLICATIONS SIMILAR IN DESIGN TO FACEBOOK, TWITTER AND WIKIPEDIA, BUT TAILORED FOR BUSINESS USE TO HELP LARGE CORPORATIONS TO CONNECT THEIR GEOGRAPHICALLY DIVERSE WORKFORCE. A SOCIAL NETWORK SERVICE ( SNS ) FOCUSES ON BUILDING ONLINE COMMUNITIES OF PEOPLE WHO SHARE INTERESTS AND/OR ACTIVITIES, OR WHO ARE INTERESTED IN EXPLORING THE INTERESTS AND ACTIVITIES OF OTHERS. SOCIAL NETWORK SERVICES ARE WEB BASED AND PROVIDE A VARIETY OF WAYS FOR USERS TO INTERACT, SUCH AS AND INSTANT MESSAGING SERVICES. SEE

22 SOCIAL NETWORKS AND THE LAW Visualization of a Biblical Social Network done using IBM software ManyEyes See

23 SOCIAL NETWORKS AND THE LAW SOCIAL NETWORKING WEBSITES ARE THE CURRENT WAY TO COMMUNICATE AND SHARE INFORMATION THE MAIN TYPES OF SOCIAL NETWORKING SERVICES ARE THOSE WHICH CONTAIN: PARTICULAR DIRECTORY OF USERS (SUCH AS ALL CYBERSPACE ATTORNEYS), MEANS TO CONNECT WITH LIKEMINDED MEMBERS (USUALLY WITH SELF-DESCRIPTION PAGES), AND FUNCTIONALITY TO FIND/RECOMMEND TRUST SYSTEMS TO LINKED TO LIKEMINDED MEMBERS. WITHIN THE CONTEXT OF THE SNS MEMBERS MAY COMMUNICATE USING TEXT AND/OR AUDIO/VIDEO CALLED WEB LOGS OR AS THEY ARE MORE COMMONLY KNOWN BLOGS. THESE BLOGS ARE ONLINE JOURNALS OR COMMENTARIES WHICH MAY REFERENCE OR LINK OTHER BLOGS AND WEBSITES. THE GROWING NUMBERS OF SOCIAL NETWORKING SITES INCLUDE: FACEBOOK, GOOGLE+, TWITTER AND 100+ OTHER SITES FOR THE PROFESSIONALS: LINKEDIN.COM. THE NUMBERS INDICATE THE POPULARITY. FACEBOOK HAS 1.1 BILLION REGISTERED USERS TWITTER HAS 500 MILLION REGISTERED USERS GOOGLE+ HAS 343 MILLION REGISTERED USERS LINKEDIN HAS 225 MILLION REGISTERED USERS SEE, EXPANDEDRAMBLINGS.COM/INDEX.PHP/RESOURCE-HOW-MANY-PEOPLE-USE-THE-TOP-SOCIAL-MEDIA/

24 FACEBOOK.COM CREATE A PROFILE PAGE LINK WITH FRIENDS SOCIAL NETWORKS AND THE LAW THE WEBSITE'S NAME REFERS TO THE PAPER FACEBOOKS DEPICTING MEMBERS OF A CAMPUS COMMUNITY THAT SOME US COLLEGES AND PREPARATORY SCHOOLS GIVE TO INCOMING STUDENTS, FACULTY, AND STAFF AS A WAY TO GET TO KNOW OTHER PEOPLE ON CAMPUS. FOUNDED CAMBRIDGE, MASSACHUSETTS(FEBRUARY 4, 2004) HEADQUARTERS PALO ALTO, CALIFORNIA DUBLIN, IRELAND (INTERNATIONAL HEADQUARTERS FOR EUROPE, AFRICA, MIDDLE EAST) MARK ZUCKERBERG, FOUNDER AND CEO REVENUE 100 BILLION USD (2012 EST.) EMPLOYEES (2012 EST)

25 FACEBOOK.COM PRIVACY SETTINGS THESE SETTING DETERMINE WHO CAN SEE WHAT YOU POST ON THE SITE JUST BEFORE IPO FACEBOOK IS LET ITS NEARLY 1 BILLION USERS VOTE ON CHANGES TO ITS PRIVACY POLICY. THE PREVIOUSLY ANNOUNCED CHANGES INCLUDE NEW SECTIONS EXPLAINING HOW IT USES PEOPLE'S INFORMATION. THE UPDATES ALSO REFLECT RECENTLY ADDED FEATURES SUCH AS A NEW PROFILE FORMAT CALLED TIMELINE. THE NEW POLICY ALSO OPENS UP THE POSSIBILITY FOR FACEBOOK TO START SHOWING PEOPLE ADS ON OUTSIDE WEBSITES, TARGETING THE PITCHES TO INTERESTS AND HOBBIES THAT USERS EXPRESS ON FACEBOOK. THE COMPANY HAD ANNOUNCED THE CHANGES IN MAY, A WEEK BEFORE ITS INITIAL PUBLIC OFFERING OF STOCK. FACEBOOK'S HIGHLY ANTICIPATED IPO LANDED WITH A THUD, CLOSING JUST 23 CENTS ABOVE ITS $38 OFFERING PRICE ON ITS FIRST TRADING DAY. THE STOCK HAS DECLINED ANOTHER 26 PERCENT IN THE TWO WEEKS SINCE THEN. THIS IS THE SECOND TIME FACEBOOK INC. IS LETTING USERS VOTE ON POLICY CHANGES. THE FIRST TIME WAS IN 2009 WHEN FACEBOOK WAS A MUCH SMALLER, PRIVATELY HELD COMPANY WITH FEWER THAN 200 MILLION USERS. IT MAY BE THE LAST TIME, THOUGH. THIRTY PERCENT OF FACEBOOK'S 900 MILLION USERS, OR 270 MILLION PEOPLE, HAVE TO VOTE ON THE CHANGES FOR OR AGAINST TO HAVE THE PROCESS BE BINDING. OTHERWISE, FACEBOOK CONSIDERS THE VOTE "ADVISORY." SOCIAL NETWORKS AND THE LAW

26 TWITTER.COM SOCIAL NETWORKS AND THE LAW CREATE A PROFILE PAGE FOLLOW OTHER USERS

27 TWITTER.COM USAGE SOCIAL NETWORKS AND THE LAW Twitter's traffic comes from SMS, Instant Message, Mobile Web, and all various API projects out there as well as web traffic. 60% of our web traffic comes from outside the United States and this chart shows the top ten non- US sources

28 Social Networks and the Law TWITTER LAWSUITS: OBVIOUS PARODY fake profile identified See,

29 Social Networks and the Law TONY LA RUSSA V. TWITTER LA RUSSA S COMPLAINT IN SF SUPERIOR CT. AGAINST TWITTER AND JOHN DOES FOR EMBARRASSING TWEETS 1. LOST 2 OUT OF 3, BUT WE MADE IT OUT OF CHICAGO WITHOUT ONE DRUNK DRIVING INCIDENT OR DEAD PITCHER I D CALL THAT AN I-55 SERIES 2. FORTUNATELY, IAN SNELL SUCKS NOW WHEN MOLINA AND DUNCAN JR. GO DEEP OFF OF YOU IT S TIME TO LOOK YOURSELF IN THE MIRROR, HAVE AN ICE- 3. DRINKING A COLD ZIMA AND WISHING **** HANCOCK WAS ALIVE, I BET HE COULD VE GOTTEN JACK WILSON OUT TWITTER RATIFIED POSTERS CONDUCT NUMEROUS CAUSES OF ACTION TWITTER CLAIMS IT S AN OBVIOUS PARODY BUT THERE IS ONLY ONE INDICATION THAT STATES: BIO PARODIES ARE FUN FOR EVERYONE TWITTER NOW PROVIDING VERIFIED ACCOUNTS

30 LINKEDIN.COM PROFESSIONAL NETWORK CREATE PROFILE ADD CONTACT JOIN GROUPS FIND JOBS ASK QUESTIONS SOCIAL NETWORKS AND THE LAW LINKEDIN POSITIONS ITSELF AS THE ONLY CREDIBLE BUSINESS- ORIENTED ALTERNATIVE TO FACEBOOK. WHILE FACEBOOK IS PERCEIVED A UTILITY FOR MANAGING ONE S SOCIAL LIFE OUTSIDE OF WORK, LINKEDIN HAS BECOME THE PLACE TO GO TO MANAGE ONE S PROFESSIONAL CAREER. THE SITE HAS ATTRACTED ALMOST 120 MILLION USERS, AND IS GROWING AT 1 MILLION USERS PER MONTH ITS USER DEMOGRAPHICS. ACCORDING TO THE COMPANY, THE AVERAGE LINKEDIN USER IS OLDER AND MORE AFFLUENT THAN THE FACEBOOK USER (DUE TO FACEBOOK S ROOTS IN THE COLLEGE STUDENT MARKET). LINKEDIN USERS ALSO HAVE A HIGHER INCOME THAN READERS OF ESTABLISHED MANAGEMENT-ORIENTED PUBLICATIONS LIKE FORBES AND FORTUNE. ITS SOCIAL DATA REPOSITORY. THE DATA IN LINKEDIN WHICH HAS YET TO BE EXPLOITED BY THIRD-PARTY DEVELOPERS INCLUDES A DETAILED JOB HISTORY, RECOMMENDATIONS AND INTRODUCTIONS.

31 EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT MOST PEOPLE USE SOCIAL MEDIA IN THEIR EVERYDAY LIVES. 91 PERCENT OF TODAY S ONLINE ADULTS USE SOCIAL MEDIA REGULARLY, AND [S]OCIAL NETWORKING CONTINUES TO REIGN AS THE TOP ONLINE ACTIVITY. EVERY MINUTE, SOCIAL MEDIA USERS CREATE MASSIVE AMOUNTS OF DATA: FACEBOOK USERS SHARE 684,478 PIECES OF CONTENT; TUMBLR BLOG OWNERS PUBLISH 27,778 NEW POSTS; YOUTUBE USERS UPLOAD 48 HOURS OF NEW VIDEO; FOURSQUARE USERS PERFORM 2,083 CHECK- INS; FLICKR USERS ADD 3,125 NEW PHOTOS, AND INSTAGRAM USERS SHARE 3,600 NEW PHOTOS.6 IN ADDITION, THERE ARE HUNDREDS OF OTHER SOCIAL NETWORKING WEBSITES, EACH CATERING TO A DIFFERENT DEMOGRAPHIC. SEE NOT SURPRISINGLY, THIS EXPANDING MEDIUM OF SOCIAL MEDIA FACTORS INTO THE MAJORITY OF CASES IN SOME RESPECT OR ANOTHER. SOCIAL MEDIA EVIDENCE CAN INCLUDE PHOTOGRAPHS, STATUS UPDATES, PEOPLE S LOCATION AT A CERTAIN TIME, AND DIRECT COMMUNICATIONS TO A DEFENDANT S SOCIAL MEDIA ACCOUNTS, AMONG OTHERS. THE CHANGING WAYS TO SHARE INFORMATION VIA SOCIAL MEDIA HAS RESULTED IN A DIGITAL GOLDMINE OF POTENTIAL EVIDENCE: PROFILES, LISTS OF FRIENDS, GROUP MEMBERSHIPS, MESSAGES, CHAT LOGS, TWEETS, PHOTOS, VIDEOS, TAGS, GPS LOCATIONS, CHECK-INS, LOGIN TIMETABLES AND MORE. WITH THE ADVENT OF LOCATION-BASED SERVICES OFFERED BY SOCIAL MEDIA COMPANIES LIKE FACEBOOK, TWITTER, AND FOURSQUARE, PRECISE LOCATION INFORMATION WILL BE INCREASINGLY MAINTAINED IN THE ORDINARY COURSE OF BUSINESS AND SUBJECT TO THE SAME SUBPOENAS AND SEARCH WARRANTS.10 NOT SURPRISINGLY, EACH SOCIAL MEDIA SUBPOENA CAN YIELD ADMISSIONS OR INCRIMINATING PHOTOS, AMONG OTHER EVIDENCE.

32 EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: HOW DO WE GAIN ACCESS IF WE AGREE THAT SOCIAL NETWORKING SITES MAY YIELD RELEVANT INFORMATION, THE ISSUE THEN IS GAINING ACCESS TO THAT INFORMATION. IN EEOC V. SIMPLY STORAGE MANAGEMENT, LLC, 270 F.R.D. 430 (S.D. IND. 2010), THE COURT STATED THAT DISCOVERY OF SOCIAL NETWORKING SITES INVOLVES THE APPLICATION OF BASIC DISCOVERY PRINCIPLES, JUST IN A NOVEL CONTEXT. THE STORED COMMUNICATIONS ACT (SCA), 18 U.S.C. 2702(A)(1) AND (2), PROHIBITS INTERNET OPERATORS FROM KNOWINGLY DIVULGING TO ANY PERSON OR ENTITY THE CONTENTS OF A COMMUNICATION WHILE IN ELECTRONIC STORAGE OR WHICH IS CARRIED OR MAINTAINED ON THAT SERVICE. ACCORDINGLY, THE SCA PROVIDES THAT INTERNET OPERATORS MUST HAVE THE LAWFUL CONSENT OF THE ORIGINATOR OR AN ADDRESSEE OR INTENDED RECIPIENT BEFORE REVEALING SOCIAL NETWORKING INFORMATION. SEE

33 EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT THERE ARE SEVERAL METHODS FOR OBTAINING SOCIAL NETWORKING DATA; THE METHOD YOU CHOOSE WILL DEPEND ON THE TYPE OF INFORMATION SOUGHT. BASIC SUBSCRIBER INFORMATION, INCLUDING THE USER S NAME, ADDRESS AND OTHER CONTACT INFORMATION, CAN BE OBTAINED WITH A SUBPOENA. NOTE THAT SUBSCRIBER INFORMATION IS NOT DIFFICULT TO OBTAIN BECAUSE COURTS HAVE CONSISTENTLY HELD THAT A PERSON LACKS A LEGITIMATE EXPECTATION OF PRIVACY IN INTERNET SUBSCRIBER INFORMATION. CRISPIN V. CHRISTIAN AUDIGER, INC., 717 F. SUPP. 2D 965 (S.D. CAL. 2010) IS AN EXAMPLE OF SUCH A RULING. TO OBTAIN MORE INFORMATION, SECTION 2703 OF THE SCA AFFORDS WHAT IS REFERRED TO COMMONLY AS A 2703(D) ORDER (OR JUST A D ORDER ) AND REQUIRES SPECIFIC AND ARTICULABLE FACTS THAT THE DATA IS RELEVANT AND MATERIAL TO THE INVESTIGATION. WITHOUT PRIOR NOTICE, A 2703(D) WILL RETURN ONLY NON-CONTENT. FOR EXAMPLE, IT WILL SHOW YOU THE RECIPIENT OF THE MESSAGE, BUT NOT ITS CONTENT, FOR WHICH YOU NEED A 2703(D) ORDER WITH PRIOR NOTICE. THIS ARTICLE WILL NOT ADDRESS THE ADDITIONAL METHODS OF USING A SEARCH WARRANT OR OBTAINING A WIRETAP ORDER.

34 EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT MOST SOCIAL NETWORKING SITES HAVE PRIVACY SETTINGS RANGING FROM COMMUNICATIONS ONLY ACCESSIBLE BY A SELECT GROUP OF INDIVIDUALS TO COMMUNICATIONS SHARED WITH THE PUBLIC AT LARGE. COURTS HAVE LOOKED TO THESE PRIVACY SETTINGS WHEN DETERMINING WHETHER POSTINGS ON THESE SITES ARE ADMISSIBLE. PRIVACY SETTINGS RELEVANT. IN DEXTER V. DEXTER, 2007 OHIO APP. LEXIS 2388, THE APPELLATE COURT FOUND THAT A PARENT SEEKING CUSTODY COULD NOT CLAIM AN EXPECTATION OF PRIVACY IN PUBLICLY ACCESSIBLE WRITINGS ON MYSPACE DETAILING HER INTENT TO COMMENCE USING DRUGS AFTER THE CUSTODY PROCEEDINGS. PRIVACY SETTINGS NOT RELEVANT.IN ROMANO V. STEELCASE, INC., 907 N.Y.S. 2D 650 (2010), A NEW YORK COURT HELD THAT A SOCIAL NETWORKING USER HAS NO REASONABLE EXPECTATION OF PRIVACY, NOTWITHSTANDING HER PRIVACY SETTINGS, BECAUSE THE SITES DO NOT GUARANTEE COMPLETE PRIVACY. IN THIS PERSONAL INJURY CASE, THE COURT FOUND THAT BASED ON THE PUBLICLY AVAILABLE INFORMATION IN ROMANO S PROFILE, IT WAS REASONABLE TO CONCLUDE THAT THE PRIVATE PORTIONS OF HER PROFILES WOULD CONTAIN MORE EVIDENCE THAT WOULD BE MATERIAL AND RELEVANT TO THE DEFENSE OF THE ACTION. IN DECIDING WHETHER TO ALLOW A PARTY TO DISCOVER SOCIAL NETWORKING INFORMATION, COURTS WILL LOOK AT THESE FACTORS: 1) WHETHER THE CONTENT IS MATERIAL AND NECESSARY TO PROVE THE CASE; 2) WHETHER THERE ARE OTHER MEANS TO OBTAIN THE CONTENT; AND 3) WHETHER THE REQUESTING PARTY WILL BE AT A DISADVANTAGE WITHOUT ACCESSING THE CONTENT

35 EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: PRIVACY SETTINGS IN US V. MEREGILDO, NO. 11 CR 576 (WHP) (S.D.N.Y.; AUG 10, 2012) DEFENDANT MOVED TO SUPPRESS EVIDENCE SEIZED FROM HIS FACEBOOK ACCOUNT PURSUANT TO A WARRANT. HE DID NOT CONTEST THE FINDING OF PROBABLE CAUSE, BUT HE TOOK ISSUE WITH THE GOVERNMENT S METHODS USED TO PROCURE EVIDENCE IN SUPPORT OF ITS SHOWING OF PROBABLE CAUSE. THE GOVERNMENT USED A COOPERATING WITNESS WHO WAS "FRIENDS" WITH DEFENDANT ON FACEBOOK AND WHO PROVIDED DEFENDANT 'S INFORMATION (PICTURES OR POSTS?) THAT SUPPORTED THE WARRANT APPLICATION. DEFENDANT ARGUED THAT THE GOVERNMENT'S PROCUREMENT OF INFORMATION IN THIS WAY VIOLATED HIS FOURTH AMENDMENT RIGHTS. THE COURT IN MEREGILDO SAID THERE IS NO FOURTH AMENDMENT PROTECTION IN PUBLICLY POSTED INFORMATION. ON THE OTHER HAND, IF USERS POST CONTENT TO SOCIAL NETWORKING SITES USING MORE.. SECURE PRIVACY SETTINGS, [THIS] REFLECT[S] THE USER S INTENT TO PRESERVE INFORMATION AS PRIVATE AND MAY ENGENDER FOURTH AMENDMENT PROTECTION. DEFENDANT S FACEBOOK PROFILE DID NOT FALL INTO THE SECOND CATEGORY. HIS PROFILE ALLOWED HIS FRIENDS TO VIEW A LIST OF ALL HIS OTHER FRIENDS, AS WELL AS MESSAGES AND PHOTOGRAPHS THAT DEFENDANT AND OTHERS POSTED TO DEFENDANT S PROFILE. BECAUSE THE PRIVACY SETTINGS ALLOWED DEFENDANT S FRIENDS TO VIEW MATERIALS POSTED TO HIS FACEBOOK ACCOUNT, THE COURT SAYS THERE WAS NO FOURTH AMENDMENT VIOLATION.

36 EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: CIVIL CASE DISCOVERY IN A CIVIL CASE, YOU CAN OBTAIN INFORMATION FROM SOCIAL NETWORKING SITES : ISSUE A REQUEST FOR PRODUCTION FOR SPECIFIC DOCUMENTS OR CONTENT FROM A PARTY S PROFILE. REQUEST THE PARTY S LOG-ON NAME AND PASSWORD IN AN INTERROGATORY OR DEPOSITION. REQUEST COURT ORDER PROVIDING FOR DISCLOSURE AND/OR IN CAMERA REVIEW. IN OFFENBACK V. L.M. BOWMAN, INC., 2011 U.S. DIST, LEXIS (M.D. PA.), A CASE IN WHICH OFFENBACK WAS SUING FOR INJURIES SUSTAINED IN AN AUTOMOBILE ACCIDENT, THE DISTRICT COURT WAS ASKED TO REVIEW OFFENBACK S FACEBOOK PROFILE FOR RELEVANT INFORMATION. THE COURT DID FIND A POSTING ABOUT OFFENBACK S RECENT MULTI-STATE TRIP BY MOTORCYCLE, WHICH WAS CLEARLY RELEVANT. THE COURT DID STATE, HOWEVER, THAT OFFENBACK SHOULD HAVE PRODUCED THE INFORMATION WITHOUT THE COURT BEING INVOLVED IN THE DISCOVERY PROCESS. IN BARNES V. CUS NASHVILLE, INC., 2010 WL (M.D. TENN.), THE COURT WENT SO FAR AS TO OFFER TO PROVIDE AN IN CAMERA REVIEW BY BECOMING FRIENDS WITH THE PARTY IN ORDER TO REVIEW THEIR PRIVATE CONTENT FOR RELEVANCY! NOTE: STATE AND LOCAL BAR ASSOCIATIONS ARE STARTING TO ADDRESS SOCIAL NETWORKING THROUGH ETHICS OPINIONS. SEE

37 EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: DISCOVERY IN 2010, THE NEW YORK STATE BAR ISSUED OPINION #943 CONCLUDING THAT AN ATTORNEY WHO REPRESENTS A CLIENT IN A PENDING LITIGATION MAY ACCESS AND REVIEW THE PUBLIC SOCIAL NETWORK PAGES OF ANOTHER PARTY TO SEARCH FOR POTENTIAL IMPEACHMENT MATERIAL, AS LONG AS THE ATTORNEY DOES NOT FRIEND THE OTHER PARTY OR DIRECT A THIRD PERSON TO DO SO. THE NEW YORK CITY BAR IN OPINION , AND THE SAN DIEGO COUNTY BAR IN OPINION , FOUND THAT AN ATTORNEY MAY NOT ATTEMPT TO GAIN ACCESS TO A SOCIAL NETWORKING SITE UNDER FALSE PRETENSES, EITHER DIRECTLY OR THROUGH AN AGENT. NOTE: THAT JUST BECAUSE SOCIAL NETWORKING SITES MAY CONTAIN INFORMATION ABOUT THE OTHER PARTIES IN YOUR CASE DOES NOT MEAN YOU CAN GET UNFETTERED ACCESS TO THEIR PRIVACY POSTINGS. MOST RECENTLY, A FEDERAL MAGISTRATE DENIED A MOTION TO COMPEL PRODUCTION OF FACEBOOK RECORDS IN A PERSONAL INJURY CASE. IN TOMPKINS V. DETROIT METRO AIRPORT, 2012 U.S. DIST (E.D. MICH. JANUARY 18, 2012), PLAINTIFF LELA TOMPKINS CLAIMED BACK INJURIES FROM A SLIP AND FALL AT THE AIRPORT. THE AIRPORT ARGUED THAT TOMPKINS MIGHT BE FAKING HER INJURIES, REFERENCING PHOTOS FROM HER PUBLIC FACEBOOK PAGES AND SURVEILLANCE PHOTOS SHOWING HER HOLDING A SMALL DOG AND PUSHING A GROCERY CART. THE AIRPORT SOUGHT TO COMPEL PRODUCTION OF TOMPKINS ENTIRE FACEBOOK ACCOUNT. THE DISTRICT COURT FOUND THE REQUEST OVERBROAD AND THE FACEBOOK DATA NOT RELEVANT, SINCE PUSHING A GROCERY CART WOULD NOT BE INCONSISTENT WITH TOMPKINS CLAIMS. THE COURT SAID THAT HAD THE PHOTOS SHOWN HER PLAYING GOLF OR LIFTING HEAVY PACKAGES, THE AIRPORT WOULD HAVE HAD A STRONGER ARGUMENT. NARROWLY TAILORED DISCOVERY REQUESTS FOR SOCIAL NETWORKING DATA ARE MORE LIKELY TO BE APPROVED BY THE COURT AND RETURN INFORMATION RELEVANT TO YOUR CASE...

38 E DISCOVERY AND ADMISSIBILITY E DISCOVERY AND THE LAW THERE IS A LACK OF CASE LAW ADDRESSING ADMISSIBILITY OF ESI. IN, LORRAINE V. MARKEL AM. INS. CO., 241 F.R.D. 534 (D. MD. 2007). LORRAINE SHED A 100-PAGE OPINION ON AUTHENTICATION OF ELECTRONIC EVIDENCE -- IT INVOLVED A YACHT STRUCK BY LIGHTNING. THE COURT DISAPPOINTED BY THE PARTIES' FAILURE TO AUTHENTICATE EVEN BASIC S (ATTACHED TO THE PARTIES MOTIONS AS EXHIBITS), TOOK THE OPPORTUNITY TO PROVIDE MUCH NEEDED GUIDANCE. AS THERE IS NOT MUCH IN THE WAY OF CASE LAW ADDRESSING ADMISSIBILITY OF ESI. THE LORRAINE COURT GUIDELINES PROVIDE SOME BASICS. THE LITIGANT PURPORTING TO INTRODUCE ESI AS EVIDENCE (CLOUD BASED DATA) MUST BE ABLE TO DEMONSTRATE THAT THE ESI IS RELEVANT AND AUTHENTIC, THAT IT IS NOT PRECLUDED BY THE HEARSAY RULE (OR FITS WITHIN ONE OF ITS EXCEPTIONS) OR THE BEST EVIDENCE RULE, AND THAT ITS PROBATIVE VALUE IS NOT SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE. AS NOTED BY THE COURT IN LORRAINE: WHETHER ESI IS ADMISSIBLE INTO EVIDENCE IS DETERMINED BY A COLLECTION OF EVIDENCE RULES THAT PRESENT THEMSELVES LIKE A SERIES OF HURDLES TO BE CLEARED BY THE PROPONENT OF THE EVIDENCE. FAILURE TO CLEAR ANY OF THESE EVIDENTIARY HURDLES MEANS THAT THE EVIDENCE WILL NOT BE ADMISSIBLE. WHENEVER ESI IS OFFERED AS EVIDENCE, EITHER AT TRIAL OR IN SUMMARY JUDGMENT, THE FOLLOWING EVIDENCE RULES MUST BE CONSIDERED: (1) IS THE ESI RELEVANT AS DETERMINED BY RULE 401 (DOES IT HAVE ANY TENDENCY TO MAKE SOME FACT THAT IS OF CONSEQUENCE TO THE LITIGATION MORE OR LESS PROBABLE THAN IT OTHERWISE WOULD BE); (2) IF RELEVANT UNDER 401, IS IT AUTHENTIC AS REQUIRED BY RULE 901(A) (CAN THE PROPONENT SHOW THAT THE ESI IS WHAT IT PURPORTS TO BE); (3) IF THE ESI IS OFFERED FOR ITS SUBSTANTIVE TRUTH, IS IT HEARSAY AS DEFINED BY RULE 801, AND IF SO, IS IT COVERED BY AN APPLICABLE EXCEPTION (RULES 803, 804 AND 807); (4) IS THE FORM OF THE ESI THAT IS BEING OFFERED AS EVIDENCE AN ORIGINAL OR DUPLICATE UNDER THE ORIGINAL WRITING RULE, OF IF NOT, IS THERE ADMISSIBLE SECONDARY EVIDENCE TO PROVE THE CONTENT OF THE ESI (RULES ); AND (5) IS THE PROBATIVE VALUE OF THE ESI SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE OR ONE OF THE OTHER FACTORS IDENTIFIED BY RULE 403, SUCH THAT IT SHOULD BE EXCLUDED DESPITE ITS RELEVANCE. THESE EVIDENTIARY HURDLES ARE CHALLENGING WHEN IT COMES TO SNS, ESPECIALLY AUTHENTICITY AND HEARSAY. THE PROPONENT OF EVEN AN , BLOG POST, IM, TWEET, OR OTHER COMMUNICATION MAY NEED TO SECURE DECLARATIONS, DEPOSITION TESTIMONY, OR EVEN LIVE TESTIMONY OF THE AUTHOR(S), THE RECIPIENT(S), THE DATA CUSTODIAN. THE SAME ANALYSIS MUST BE CONSIDERED FOR EACH AND EVERY SUCH COMMUNICATION. BIG JOB SEE,

39 FACEBOOK, TWITTER & GOOGLE PLUS: EDISCOVERY ESSENTIALS FOR ESI ADMISSIBILITY: FACTUAL PREDICATE DAVIDS V. NOVARTIS PHARMACEUTICALS CORP., NO. CV (E.D.N.Y. FEB. 24, 2012) THE COURT REQUIRED A DEMONSTRATION OF A FACTUAL PREDICATE BEFORE REQUIRING A PARTY TO TURN OVER THE USERNAME AND PASSWORD TO HER SOCIAL MEDIA ACCOUNT. THE CASE INVOLVED A PLAINTIFF WHO CLAIMED A RARE JAW DISORDER CAUSED BY THE DEFENDANT S DRUG. IN DISCOVERY, THE DEFENDANT SOUGHT THE PLAINTIFF S SIGNATURE ON A RELEASE THAT WOULD ALLOW IT TO REVIEW THE PLAINTIFF S PERSONAL PICTURES AND INFORMATION FROM HER SOCIAL NETWORKING ACCOUNTS. THE PLAINTIFF REFUSED AND PRODUCED ONLY PUBLICLY AVAILABLE INFORMATION FROM FACEBOOK. SHE REFUSED TO TURN OVER ITEMS HIDDEN USING FACEBOOK S PRIVACY SETTINGS, CLAIMING THAT THE DEFENDANT S REQUEST WAS AN OVERLY BROAD FISHING EXPEDITION. THE DEFENDANT FILED A MOTION TO COMPEL THE PLAINTIFF TO SUPPLY HER FACEBOOK LOGIN CREDENTIALS, ASSERTING THAT THE INFORMATION WAS DISCOVERABLE SINCE IT RELATED DIRECTLY TO HER CLAIM OF ONGOING SUFFERING. THE DEFENDANT ALSO BASED ITS CLAIM ON THE PLAINTIFF S FACEBOOK PROFILE PICTURE, IN WHICH SHE WAS SMILING. DESPITE THIS CLAIM, THE DEFENDANT DID NOT INQUIRE ABOUT THE FACEBOOK ACTIVITY AT THE PLAINTIFF S DEPOSITION, SO THE ONLY EVIDENCE IT HAD WAS HER PICTURE. THE COURT NOTED THAT SINCE NEITHER THE FEDERAL APPELLATE OR DISTRICT COURT HAD ADDRESSED THE ISSUE, IT WAS REQUIRED TO ANALYZE THE ISSUE UNDER NEW YORK STATE LAW. THE JUDGE HELD THAT THE REQUEST FOR LOGIN INFORMATION WITHOUT A FACTUAL PREDICATE WAS TANTAMOUNT TO A FISHING EXPEDITION. HE FURTHER RULED THAT OTHER PUBLIC POSTINGS MUST SUPPORT AN INFERENCE THAT OTHER RELEVANT INFORMATION MUST EXIST ON THE SITE. THE COURT ALSO FOUND THAT ONE PICTURE OF THE PLAINTIFF ALLEGEDLY SMILING DID NOT CONTRADICT HER CLAIM OF SUFFERING OR WARRANT A FURTHER INTRUSION INTO HER SOCIAL MEDIA ACCOUNT. THUS, IT DENIED THE DEFENDANT S MOTION. SEE, 39

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