Want To Be My Friend? Social Networking & Ediscovery

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1 Want To Be My Friend? Social Networking & Ediscovery Michael A. Avalos, Esq., Assistant General Counsel, AIG Jonathan E. Sachs, Esq., Senior Account Executive, Kroll Ontrack July 23, 2014

2 Discussion Overview Social Media Discovery: Why, Where, What, and Who The How of Social Media Discovery» Authenticity challenges» Learning to social media collection In the Workplace 2

3 Social Media: a staple in everyday communication In January 2014, Facebook surpassed 1.23 billion users» Twitter reported 243 million users in February 2014 Approximately two new members joining per second» Linkedin at 277 million users in 2014 Number of Active FB Users (millions) In January 2013, Americans between the ages of spent an average of 3.2 hours a day on social media sites» Of this statistic, Men are on social media sites 2.6 hours a day and women 3.6 hours a day -OTX, Americans Daily Time spent Social Networking (2013) 3

4 Social Media Discovery: Why, Where, What, and Who

5 Why lawyers should care about social media Social media impacts all aspects of the practice of law and representation of clients:» Discovery Social media data can be fully discoverable.» Trial Social media data can be admissible as evidence.» Ethics Dealing with social media raises unique ethical issues.» Policy Development Corporations are looking to lawyers to help with social media policies.» Privacy Because of the personal, yet public, nature of social media, diverse privacy concerns exist.» Licensing A lawyer s individual conduct on social media sites can impact admission and standing in the Bar. 5

6 Where does discoverable social media reside?» Comments & Messages Tweets, wall comments, status updates, posts» Photos Profile pictures, albums, pictures others tag you in» Videos» User Information LinkedIn resume, things liked, username, date of birth, location, employment & education info, groups joined» Metadata 6

7 What social media information is discoverable? Discoverable information Discoverable electronically stored information (ESI) Discoverable social media information Federal Rule 26(b)(1) Non-privileged and relevant to any party s claim or defense Federal Rule 34 (amended 2006) Responsive s, documents, spreadsheets, text messages, etc. An important subset of responsive ESI Generally, social media data is discoverable 7

8 What social media information is discoverable? Is everything discoverable? Courts are settled that social media is discoverable, but not how much is discoverable Narrow Mailhoit v. Home Depot U.S.A., Inc., 2012 WL (C.D. Cal. Sept. 7, 2012): The Federal Rules do not grant a generalized right to rummage at will through information [a person] has limited from public view absent a Rule 34 showing of reasonable particularity in request for data. Private Sections? Broad E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc., 2012 WL (D. Colo. Nov. 7, 2012): Reasoned that social media data was the logical equivalent of an everything about me folder with a bevy of relevant information. 8

9 Who do I seek information from when cooperation ceases? Does the Stored Communications Act prohibit production of social media? Prohibits:» Electronic Communication Service (ECS) and» Remote Computing Service (RCS) providers From:» knowingly divulging the contents of» a communication» it stores Unless the divulgence is:» to an intended recipient of such communication or» express permission from the sender is obtained 9

10 Seek court order to obtain party s login information? Subpeona social networking site provider? Zimmerman v. Weis Markets, Inc., No. CV McMillen v. Hummingbird Speedway, Inc., No CD. Crispin v. Christian Audigier Inc., 717 F.Supp.2d 965. Who do I seek information from when cooperation ceases? 10

11 The How of Social Media Discovery Authenticity Challenges Learning to Collection

12 Authenticity Challenges Nobody would post incriminating content on, right!? Syphoned gasoline from a police car Posted a Facebook photo taken by his girlfriend memorializing the crime Arrested for theft by unlawful taking Updated his friends via status posting: yea lol I went to jail over Facebook - Image and article source: Stole hundreds in cash & computers Posted a photo of himself on burglary victim s Facebook page in which he held cash he d stolen Identified as robbery suspect and later sentenced to 44 months - Image and article source: 12

13 Authenticity Challenges Tienda v. State Procedural Posture Murder conviction appeal Defendant challenges admissibility of postings on three MySpace pages admitted at trial on authenticity grounds Court looks to circumstantial evidence The point at which a reasonable jury could have found that the MySpace pages were created and maintained by the defendant The state s total circumstantial evidence S.W.3d 633 (Tex. Crim. App. Feb 8, 2012) 13

14 Learning to Collection With social media data, all the standard discovery obligations apply, including the duty to preserve Problems» Changes very frequently» Stored on third-party servers» Security and privacy settings block access» Few reliable technologies available for social media preservation 14

15 Learning to Assume you discover that: Your client has been sued and Your client has relevant non-privileged information on his LinkedIn profile? Your options: Collection Social Media Collection Tools Unassisted Collection 2. Download Your Information 15

16 Learning to Collection Best Practices» Consider social media production problems (e.g. native format) upfront when negotiating at the Rule 26(f) meet and confer» Don t try to collect social media without consent of the owner» Don t get overwhelmed: consider enlisting the help of an investigator or service provider if a case size is massive or deadlines are tight» Communicate to your client the importance of prior postings to litigation and the far reaching repercussions of spoliation sanctions 16

17 Social Media in the Workplace v.

18 Social Media Policies on the Rise Onus is on organizations to set policies regarding social media use in the workplace Proactive social media policies are increasingly popular among corporations, according to a Littler Mendelson survey:» 64% of respondents created polices regarding employee social media use during work hours» 58% had rules for social media use on employer-issued devices» 52% had policies addressing employees discussing the company through their own social media channels» 10% screened applicants based on social media profiles 18

19 Social Media Policies on the Rise Eleven states have passed laws prohibiting private employers from requesting or requiring that job applicants or employees provide log-in credentials for their personal social media accounts» Only 1% of the Littler Mendelson respondents request social media logins as part of hiring or onboarding process WA OR MI CA NV UT CO IL MD NM AR 19

20 Social Media Tips: The NLRB s Model Policy Serves as a baseline for appropriate corporate social media policies As a starting point, employers should: 20» Avoid unrealistic mandates!» Distinguish between: purely personal use of social media at work social media use that furthers the interests of the company (such as contacting customers or marketing a product)» Encourage employees to refrain from personal use of social media while on work equipment, unless it is authorized by [a] manager or consistent with company policy.

21 Social Media Tips: Usage Policies Articulate clear policies:» Define appropriate workplace use» Inform employees that activity on company devices may be monitored Encourage prudent posting:» Specify what employees can and cannot divulge» Posts should be honest, accurate, respectful and consistent with corporate ethics and harassment policies» Identify consequences of non-compliance Train employees:» Couple social media policy with privacy awareness training 21

22 Social Media Tips: Usage Policies Ultimately, there is no one size fits all approach! Policy should reflect corporate culture and law Must understand:» Your company s brand» Tolerance for dissent and risk» Relationship with workforce Balance those factors with what the law requires/allows 22

23 Parting Thoughts & Questions

24 Parting Thoughts Stay updated on social media it will only continue to expand Pay attention to case law, new legislation, and ethical guidance Address social media challenges at every stage of the EDRM Balance is key when it comes to social media usage policies 24

25

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