Discovery of Social Media: The Seventh Circuit E-Discovery Pilot Program. Ronald L. Lipinski, Seyfarth Shaw LLP Jay C. Carle, Seyfarth Shaw LLP

Transcription

1 Discovery of Social Media: The Seventh Circuit E-Discovery Pilot Program Ronald L. Lipinski, Seyfarth Shaw LLP Jay C. Carle, Seyfarth Shaw LLP 04/05/2013

2 Before we get started I. Intro a) Definition & Scope of Social Media Use b) Importance as Discovery Target II. Discoverability I. Relevance II. Possession, Custody or Control Issues III. Methods of and Limitations on Discovery of Social Media I. The Stored Communications Act II. Informal Discovery III. Third Party Subpoenas IV. Interrogatories & Document Requests 2

3 Before we get started IV. Practical Considerations for Preservation, Collection & Production of Social Media Content a) Data Identification and Collection (i.e., The What, Where and How) b) Chain of Custody and Authenticity Considerations c) Production Format V. Technical Tools a) Social Media Preservation and Collection Tools 3

4 Definition & Scope of Use Social media is: Shared Interactive Internet-based Dynamic Collaborative Utilizes multiple data types Ubiquitous As of December 2012, 67% of online adults use social networking. (Pew Research Center) 22% of Fortune 500 companies now have public-facing blogs. Sedona Conference Primer on Social Media 4

5 Social Media as Discovery Target Communications on these websites can often reveal important information about individuals including information that may support, undermine or entirely refute claims or lead to counter claims. 5

6 Social Media as Discovery Target (cont.) Communications on these websites can often reveal important information about individuals including information that may support, undermine or entirely refute claims or lead to counter claims. Many social media tools are now being formally or informally adopted for business communication. The employer may be the subscriber and certain employees/positions may maintain accounts for official communication. Business units, departments or employees may informally adopt social media tools for marketing, or internal/project-based communication. 6

7 Discoverability, Generally Social media data is discoverable. The scope of discovery into social media sites requires the application of basic discovery principles in a novel context and that the challenge is to define appropriately broad limits on the discovery ability of social communications. Offenback v. L.M. Bowman, Inc., 2011 WL (M.D. Pa. June 22, 2011) Federal Rules of Civil Procedure, 2006 Amendments: ESI was included, and "intended to be read expansively to include all current and future electronic storage mediums." Notes of the Advisory Committee to the 2006 Amendments to Rule 34 7

8 Discoverability, Generally In addressing the discoverability of social media, we typically analyze three questions: Is social media relevant to the claims or defenses at issue in your litigation? If so, is it within your possession, custody, or control? And, finally, is there anything else that may preclude or limit discovery of social media content? 8

9 Discoverability, Generally (cont.) There is a duty to preserve (and potentially produce) potentially relevant information once litigation is pending or reasonably anticipated as long as it is in your possession, custody or control. For the party filing the legal action, the duty to be triggered before the complaint is filed. How can this standard be applied to social media? 9

10 Discoverability: Relevance Relevance depends on the facts and circumstances of each case. Very difficult to determine, especially early on. Nevertheless, Social Media should be on everyone s initial checklist (like , loose files, etc,) What social media information could be Potentially Relevant? Content (personal and private); Date/time content was added; Individual who added content; Individuals with access to page/wall; Identities of individuals in subject s network; Deleted content. 10

11 Discoverability: Possession, Custody & Control Possession, custody or control: the terms are listed in the disjunctive. Contractual limitations or legal restrictions on disclosure will not necessarily bar production under Rule 34 still within the scope of Rule 34. Ownership is NOT determinative; it is merely a control factor. 11

12 Discoverability: Possession, Custody & Control (cont.) What is Control? A party may be deemed to have control over information it does not possess or have custody if it has the legal right or, in some jurisdictions, the practical ability to obtain the information. Legal Right Contract, Statute, Regulations, or any other legal entitlement (i.e. ownership). Practical Ability A party may required to produce information not in its possession if the party has retained any right or ability to influence the person in whose possession the documents lie. 12

13 Informal Discovery Investigate public profiles (i.e., Internet and social media site searches) The amount of publicly available information that can be uncovered depends upon what social networking site the person uses and the security/privacy settings the person has activated on the site (if any). User s postings, list of friends, shared photos and videos, and other valuable information are often publically available. There are a number of tools available that will crawl public websites and download changes and new content. 13

14 Informal Discovery: Limitations Friending under pretext Subterfuge friending could violate Professional Conduct Rules because the planned communication by the third party with the [victim] is deceptive. Philadelphia Bar Association opinion , dated March 2009 The rules of ethics impose limits on how attorneys may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel Those rules bar an attorney from making an ex parte friend request of a represented party. San Diego County Bar Association Legal Ethics Opinion , May 24,

15 Informal Discovery: Limitations (cont.) Obtaining access through perceived coercion Pietrylo v Hillstone Restaurant Group, 2009 WL (D.N.J. September 25, 2009) One employee provided uninvited members of management with her access information to a private MySpace discussion group where disgruntled employees could negatively comment about their jobs. The management viewed the discussion group page and fired a number of employees as a result. In the resulting litigation, the defendants were found to be in violation of the federal and state versions of the Stored Communications Act which make it an offense to access stored communications intentionally without authorization The jury found that the employee who provided access to management had felt coerced, and so the access was not authorized. 15

16 The Stored Communications Act Part of the Electronic Communications Privacy Act. Imposes different levels of restriction on: Electronic Communication Service Providers Entity provides users the ability to send or receive wire or electronic communication. Prohibition on unauthorized disclosure to third parties of private communications in temporary storage or kept for backup. Statute also bars third parties from improperly accessing communication maintained by such entities. Remote Computing Service Providers Entity provides the public computer storage or processing services by means of an electronic communications system Broader prohibition on unauthorized disclosure to third parties. 16

17 The Stored Communications Act (cont.) SCA applies to information generated using social media. O'Grady v. Superior Court, 139 Cal.App.4th 1423, 1448 (Cal.App. 2006) Subpoena to service provider of web journal could not be enforced due to the SCA. Crispin v. Christian Audigier, Inc WL , 6 (C.D.Cal.) (C.D.Cal.,2010); The court found portions of an individual s social networking sites designated as private to be secure information under the federal Stored Communications Act. 17

18 The Stored Communications Act (cont.) Exceptions to SCA Prohibitions: While the SCA permits disclosure of user information to a governmental entity pursuant to a criminal warrant, there is no provision in the SCA allowing disclosure of information in response to a civil subpoena. If it is necessary to obtain protected communications directly from ISP, SCA permits it with the consent of the user/subscriber. If voluntary consent cannot be obtained, the requesting party may seek a court order compelling the user/subscriber to provide consent. Risk that evidence may be lost while consent is sought. ISP can be notified requesting party is seeking consent and asked to preserve. 18

19 Third Party Subpoenas Aside from request to preserve, a party can ask court to issue a preservation subpoena to the ISP. Court must have jurisdiction over ISP. Preservation subpoena would not compel ISP to divulge contents of communications, just preserve the communications. 19

20 Interrogatories & Document Requests Courts are willing to require users to produce social networking information in response to reasonably tailored discovery requests. EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL- DML (S.D. Ind. May 11, 2010) (Sexual Harassment) Defendant requested electronic copies of the claimant s complete profile on Facebook and MySpace (including all updates, changes, or modifications to profiles) and all status updates, message, wall comments. The court acknowledged that the [d]iscovery of [social networking sites] requires the application of basic discovery principles in a novel context The court held that: Social Networking site content must be produced when relevant to the claim or defense in a case; and The claimants expectation and intent that their SNS communications would be maintained as private was not a legitimate basis for shielding discovery. 20

21 Interrogatories & Document Requests (cont.) Romano v. Steelcase Inc., 2010 WL (N.Y. Sup. Ct. Sept. 21, 2010). The defendant requested discovery of public & private content from the plaintiff s Facebook and MySpace accounts, and the plaintiff objected to the production of the private content. The plaintiff was ordered to provide the defendant with access to private postings from both media sites. The court reasoned that information contradicting the plaintiff s claims was included on the public sections of the plaintiff s social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. In its opinion, the court cited Facebook and MySpace policies, which warn users they should have no expectation of privacy. 21

22 Employee Personal Accounts Is there an obligation to preserve and produce relevant social media content posted/communicated by an employee using a personal account? Some courts may view such content as outside an organization s possession, custody or control. Phillips v. Netblue, Inc., 2007 WL (N.D.Cal.Jan. 22, 2007) Others may order organizations to produce content created using personal accounts. Helmert v. Butterball, 2010 WL (E.D.Ark. May 27, 2010) How far does employee privacy extend? Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010) Holmes v. Petrovich Development Co., LLC, 191 Cal.App.4 th 1047 (January 13, 2011) 22

23 Data Identification & Collection The What, Where and How? Depends on the circumstances The What What is potentially relevant? E.g., Content, date stamps, access logs, user lists, data uploads (logs) The Where Where does the information reside? On the site itself: public profile / private profile Behind the scenes: How is data maintained by the provider? Temporary internet files / cache / fragmented data (forensic data acquisitions of custodian computers) The How Expensive options vs. cheaper options (You get what you pay for.) Proportionality considerations MUST be factored into your recommendations/decisions. 23

24 Chain of Custody Use of personal accounts to access, preserve and collect social media data puts the collector squarely in the chain of custody Producing such data may result in the collector becoming a witness and forced to testify 24

25 Authenticity Even if one is able to clear the high hurtle of obtaining data from a social media site, an equally daunting challenge remains getting the data admitted. Difficult to know if information available at any given time is complete Content can be edited by users at any time or lost due to technical malfunctions. Collected Data is not user friendly Easily altered / deleted Data is difficult to interpret What do fields of information mean? What do different date stamps mean? Format of preservation / production Depends on the circumstances and what data is relevant 25

26 Authenticity Courts have consistently been cautious when admitting social media data. Judges have become online friends with a party in order to authenticate postings, photos, captions and comments. Barnes v. CUS Nashville, LLC. Courts have allowed printed copies with time date stamps to corroborate facts. Treat v. Tom Kelley Buick Pontiac GMC, Inc. Courts have used circumstantial evidence associated with the creation of the data (i.e. metadata and hash tags) to authenticate social media content. Lorraine v. Markel Am. Insur. Co. 26

27 Production Format Production format turns on whether the receiving party needs to review the social media data interactively. If interactivity is important, production options include: Combination of static images & friending the requesting party; Friending the judge to enable in camera review; Providing login information for direct, read-only access to accounts; Providing access to parts of the API used for collection. If this is not important, it may be sufficient to produce in reasonably useable, searchable format (with or without metadata). Static images/hard copy print outs may be acceptable in some cases. Benefits and drawbacks to each production option. 27

28 Preservation & Collection Tools There is no best solution for preserving social media data. Various tools typically employ Connectors to publishers APIs Web crawling Snapshots / screen-grabs Site-specific methods Twitter s public follow feature that enables access to all the past Tweets of a specified user (up to 3200 past tweets) and any new Tweets in real-time without generating a formal follow request FaceBook s Download Your Information" utility. LinkedIn print to PDF feature 28

29 Preservation & Collection Tools NextPoint cloud preservation Automatically archive social media and website data with ultimate control. PageFreezer PageFreezer uses crawling technology, similar to that of Google, to take snapshots of websites. X1 Social Discovery the industry's first investigative solution specifically designed for ediscovery and computer forensics professionals to effectively address social media content, website collection, webmail, and YouTube video capture, in one single interface. 29

30 Preservation & Collection Tools Key Considerations When Selecting a Tool What social media sites does/will the solution support? How many collections can run simultaneously? How does the vendor collect and preserve the data? What does the solution capture and how is data stored and exported? What is the vendor s approach to subsequent captures? How will your organization search and use the data? How long will the preserved data be kept? What is the cost of the vendor s solution? 30

31 Contact Information Ronald L. Lipinski, Esq. (312) Jay C. Carle, Esq. (312)