Social Media E-Discovery: Process & Technology

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1 Social Media E-Discovery: Process & Technology Presented by: John Patzakis, X1 Discovery, Inc. Don Swanson, Five Star Legal and Compliance Systems, Inc. Hosted by LexisNexis and X1 Discovery

2 Social Media E-Discovery: Process & Technology Today s Presenters John Patzakis CEO X1 Discovery, Inc. Don Swanson President Five Star Legal and Compliance Systems, Inc.

3 Social Media E-Discovery: Process & Technology 1. The scope of social media? 2. Is it useful to a case? 3. How do I get it/authenticate it? 4. What are the courts saying about key legal issues related to social media? 5. What are technical best practices for social media ediscovery?

4 Top 3 Most Active World-Wide Social Networking Websites 800,000,000 registered users Registration: open to people 13 and older Purpose: general, updates 300,000,000 registered users Registration: open to all ages Purpose: general, micro-blogging, updates 120,000,000 registered users Registration: open to people 18 and older Purpose: business and professional networking Source:

5 Social Media Evidence is Widespread Legal Database Search: in last 22 months, 674 federal and state court decisions have addressed social media evidence in published opinions Myspace (326), Facebook (262 cases), Twitter (49) Linkedin (37) Cases Involving Defamation, Trademark Infringement, Corporate Securities, Personal Injury, Criminal and Employment Matters now turn on Social Media Evidence

6 Preservation Regulatory Example, Financial Industry FINRA Notice 10-6 and Notice (SEA Rule 17a4; NASD Rule 3110; Corporations must have a social media policy. Ben Kerschberg, Forbes.com, 9/28/11 Litigation Arteria Property v. Universal Funding Torres v. Lexington Insurance Lester v. Allied Concrete

7 Social Media Spoliation is Real Lester v. Allied Concrete Company (2011) Attorney Sanctioned $522,000 by Virginia State court Told client to clean up his Facebook with incriminating photos Torres v. Lexington Insurance Company (2006) Plaintiff's personal website photos removed while litigation was pending Court finds spoliation: bars plaintiff from introducing any evidence of mental anguish supporting her claims. Preservation demand sent by defense counsel

8 Process For Obtaining Social Media Discovery Rejected Approach: Crispin v. Christian Audigier (2010) Defendants directly served subpoenas on Facebook Plaintiff successfully quashed, citing Stored Communications Act. Successful Approach: Zimmerman v. Weis Markets, Inc. (2011) McMillen v. Hummingbird Speedway, Inc. (2010) Court compelled production of plaintiff s Facebook user name and password Publically available information provided good cause basis

9 Authentication of Social Media Evidence - No Unique Laws of Evidence. - FRE 901(a) Governs - State of Connecticut vs. Eleck (2011) Authorship of Facebook messages disputed Court ruled that simple printout of the Facebook items failed to establish foundation Court cites cases where ESI authenticated by their unique metadata and other circumstantial evidence that provide identifying characteristics.

10 Example Facebook Metadata Fields Field created_time Description When a post or message on Facebook was created thread_id Unique identifier of a message thread recipients All recipients of a message by name post_id Unique id number of a wall post application medium used to post a Facebook item (i.e., from an from iphone) user_id Unique id of the item poster/author account_id Unique id of a users account

11 Limitations of Facebook Download Your Information (DYI) Feature Omitted Data: 1. Various contributed or re-posted content to other accounts. (i.e. pictures on friend s wall). -De facto deleted data recovery 2. Photos of the custodian posted and tagged by other users 3. Nearly all Metadata Fields No authentication or chain of custody MD5 hashing, read-only preservation Case management

12 Form of Production For Social Media Social media evidence is considered electronically stored information under FRCP See, EEOC v. Simply Storage, FRCP rule 34(b): ESI production in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable unless the requesting party specifies a different format at the time of the request. Need to produce social media evidence in native file format with all metadata intact

13 Griffin v. Maryland The design and purpose of social media sites make them especially fertile ground for statements involving observations of events surrounding us, statements regarding how we feel, our plans and motives, and our feelings (emotional and physical)[.] It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites. (citing references) See also: Margaret M. DiBianca, Ethical Risks Arising From Lawyers' Use of (and Refusal to Use) Social Media, 12 DEL. L. REV. 179 (2011). - Duty of Competency - Duty of Diligent Representation

14 Social Media: Collection, Review and Production Don Swanson

15 Social Media: Collection, Review and Production Print Screen

16 Social Media: Collection, Review and Production Print Screen Screen Capture

17 Social Media: Collection, Review and Production Forensic Analysis Facebook Download

18 Social Media: Collection, Review and Production DEMO

19 Conclusion Questions?

20 Conclusion Contact Information John Patzakis CEO X1 Discovery, Inc Don Swanson Five Star Legal and Compliance Systems, Inc