E-Discovery and Social Media: Latest Litigation Challenges Preserving and Collecting Tweets, Facebook Postings, LinkedIn Updates and Other Content

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A E-Discovery and Social Media: Latest Litigation Challenges Preserving and Collecting Tweets, Facebook Postings, LinkedIn Updates and Other Content TUESDAY, MARCH 12, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Anthony J. Diana, Partner, Mayer Brown, New York Daniel L. Regard, Managing Director, idiscovery Solutions, Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 How Social Media Content Impacts E-Discovery Risks and Costs Anthony Diana Partner Mayer Brown LLP Dan Regard CEO idiscovery Solutions, Inc. March 12, 2013

6 Anthony J. Diana Dan Regard Partner Mayer Brown LLP CEO ids 6

7 Social Media: Expanding Scope of Discoverable ESI 7

8 A Shopping Trip With Social Media 8

9 A SHOPPING TRIP With Social Media 9

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32 A SHOPPING TRIP With Social Media 32 Just hung out with Dan (again). I love Whole Foods. It s a beautiful place.

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47 Digital Footprint Living Social Twitter Park Mobile Grocery IQ Yelp AT&T Facebook Foursquare Google Loyalty Card Bank of America Items purchased Timing of purchase Amount of time in store Order of purchase Gap between purchases Location of purchase Location of my phone Location of my home Economic Demographics Pictures Video Who Else Bought This Data? 47

48 Should We Care About Social Media? It will be, and for many people is, principal source of written communication Younger generation (i.e, new employees) will not use Primary source of evidence in many actions Already dominates matrimonial and criminal cases Helps blur lines between business and personal Moves information out of enterprises Third-party hosts data Mobile devices Smartphones Tablets (ipads) 48

49 Should We Care About Social Media? Powerful tool that can create powerful evidence Interactivity Speed and ease of use Type of information (pictures, video, links) Publicly available Credibility Nielsen study found that 70% of internet users trust online recommendations Ironically, not very credible Alias Photoshop Some features not exact (time, location) 49

50 How Can Social Media Be Used in Litigation? Sponsored External Sites Evidence of communications with customers Disgruntled employee/litigant may post defamatory information Evidence of employment opportunities/criteria Employment decisions Interaction with litigant Evidence of an Organization s Self-Image mes or narrative Diversity Ethical Standards 50

51 How Can Social Media Be Used in Litigation? Internal Sites Evidence of communications with and among employees Discrimination, harassment, hiring and firing decisions, etc. State of mind Admissions 51

52 How Can Social Media Be Used in Litigation? Personal Sites Evidence of time and place Geo-location features Time-stamp features Pictures or text Evidence of actions Seeking new employment (LinkedIn) Inappropriate behavior Leisure activities during work hours Affairs or inappropriate relations Drug or alcohol abuse Criminal activity 52

53 How Can Social Media Be Used in Litigation? Personal Sites Evidence of communications State of mind Admissions Evidence of bias Jury Section Should not limit only to employee/litigant Accounts in household will have potentially important evidence 53

54 Social Media: Decision Tree for Discovery 54

55 Decision Tree for Discovery of Social Media Under liberal discovery standard of Fed. C. Civ. P. 26(b)(1) or State equivalent, is content of social media discoverable? Burdens: Complexity of Data Structured database Linked content Layered content Different types of content (video, audio) Burdens: Preservation, collection and review Lack of technical support Difficulties in reviewing for relevance 55

56 Decision Tree for Discovery of Social Media What can be done as alternative to discovery of content? Deposition of author/published Conduct discovery of or sources for equivalent of content Question: Are eir or both of se adequate substitutes for content? How can relevance of content be shown? For content of public site For content of private site 56

57 Decision Tree for Discovery of Social Media If content of public site sought? Content described by a witness Content described by investigator (ethics question) If content of private site sought? Content described by witness Content described by investigator (ethics question) Public site yielded information 57

58 Decision Tree for Discovery of Social Media Assuming discovery allowed, what procedures are available? Adversary given authorization to view site (privacy question) Party s attorney ordered to search site and produce nonprivileged, relevant information Court given authorization and conducts in camera (judicial resource issue) Special master appointed and conducts in camera (cost and possible cost allocation issues) 58

59 Decision Tree for Discovery of Social Media What arguments can be made under Fed. R. Civ. P. 26(b)(2)(C) or State equivalent? Equivalent available elsewhere Undue cost or delay What about privacy? Privacy per se as a basis to bar any discovery of content? Basis for protective order, one- or two -tiered? 59

60 Social Media: Law Regarding Discovery Stored Communications Act: Jennings v. Jennings, Opinion No (S.C. Sup. Ct. Oct. 10, 2012) Low v. LinkedIn Corp., Case No.: 11-CV LHK (N.D. Ca. July 12, 2012) T.G. Ackermann, Consent and Discovery Under Stored Communications Act, Federal Lawyer 42 (Nov./Dec. 2009) 60

61 Social Media: Law Regarding Discovery I see no principled reason to articulate different standards for discoverability of communications through , text message, or social media platforms. I refore fashion a single order covering all se communications. Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv PK (D. Ore. Aug. 29, 2012) (allowing discovery of, among or things, plaintiff s and text messages as well as her social media content ) But re are limits: Keller v. National Farmers Union Prop. & Cas. Co., No. 9:12-cv DLC-JCL (D. Mont. Jan. 2, 2013) (denying access to private portions of social media cite absent threshold showing of need based on content of public portions) Howell v. Buckeye Ranch Inc., No. 2:11-cv (S.D. Ohio Oct. 1, 2012) (directing defendants to serve discovery requests that seek relevant information; plaintiff s counsel may access private portions of social media accounts and provide responses) Arcq v. Fields, No (Pa. Ct. Common Pleas Dec. 8, 2011) (denying access to plaintiff s private social network site given defendant s failure to show anything from plaintiff s public site) 61

62 Social Media: Preservation Scenario: A class action lawsuit is brought against a large food manufacturing company for false advertising regarding one of its popular products. complaint specifically cites several social media aspects of its marketing campaign, including company s productspecific Facebook and Twitter accounts, and dissemination of false advertising through personal accounts of company s employees. As in-house counsel, what do you do? 62

63 Social Media: Preservation Preserving Company s Social Media Accounts: Who controls accounts in-house or third party? What is scope of preservation? Time period/versions Content How to preserve? Technical requirements Preserving for admissibility Preserving Employee s Personal Social Media Accounts Does company have control over accounts? 63

64 Social Media: Collection and Production Scenario: class action lawsuit against large food manufacturing company proceeds into discovery. focus of discovery is on marketing and advertising materials, including company and employee social media accounts. As in-house counsel, what do you do? 64

65 Social Media: Collection and Production Collecting and Producing Company s Social Media Accounts Who controls accounts in-house or third party? How do you gain access? What is scope of collection? Which content to collect? How to collect? Collecting for admissibility Collecting and Producing Employee s Personal Social Media Accounts How do you gain access to collect? What is scope of collection and production? 65

66 Social Media: Investigation of a Third Party Scenario: After filing of lawsuit, a number of anonymous entries on company s Facebook account contain damaging and false information about product in question, but re is specific information in entries about how product is made that raises concerns about where a company insider or plaintiff s counsel (who is subject to a protective order) improperly leaked trade secrets. As in-house counsel, how can I determine who posted entries and use that information to stop such postings? 66

67 Social Media: Investigation of a Third Party Legal issues Ethical issues Privacy issues Admissibility/Auntication Issues Rule 901: requirement of auntication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that matter in question is what its proponent claims. 67

68 Social Media: Investigation of a Third Party Steps to Obtaining Evidence Trace originating IP back to subject s computer Obtain subscriber information for subject account Tie sent items to a hard drive, smartphone Time-line communications to book-end subject communication Get data for timeline from on-line repository or forensic review of hard drive, smartphone Establish password-protected nature of account Party to a communication testifies as to aunticity 68

69 Social Media: Criminal Investigation Scenario: company has been notified that re is a criminal investigation concerning several executives alleged activities with certain foreign suppliers. You ve begun internal investigation to determine where is any potential liability for company, relying on electronic communications stored at company. In course of investigation, you determine that re may have been communications between executives and foreign suppliers on personal Gmail accounts and on Linked In. You are concerned that government may have access to that information. 69

70 Social Media: Criminal Investigation Use of Social Media Evidence Used Frequently in Criminal Cases/Investigations Developing criminal law may impact development in civil context United States v. Meregildo, 2012 WL (S.D.N.Y. Aug. 10, 2012) (no reasonable expectation of privacy in Facebook friends ) United States v. Warshak, 2010 WL (6 th Cir. Dec. 14, 2010) (Stored Communications Act and good faith exception to warrant requirement) In re Appeal of Application for Search Warrant, 2012 VT 102 (Sup. Ct. Dec. 14, 2012) (affirming protocol for search warrant) People v. Harris, 949 N.Y.S.2d 590 (Crim. Ct. 2012) (no reasonable expectation of privacy in tweets ) People v. Diaz, 244 P.3d 501 (Ca. Sup. Ct. 2011) (custodial search of cell phone) Key distinctions Constitutional protections Stored Communications Act exception 70

71 Social Media: Criminal Investigation Government Requests for Google Mail In 2012, U.S. government agencies made over 13,000 requests Most without warrants Only certain types of information need warrants Content of Most requests through subpoena Information provided to Google as part of Google account Notice to user of request unless prohibited by law or court order 71

72 Social Media: Future Developments Key source of evidence in all types of litigations and investigations Law will always be a step behind technology so increased legal risk Technology developed to help with monitoring, compliance, preservation and production Privacy laws and information security, particularly when involving foreign data, becoming more important in litigations 72

73 Questions? 73

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