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

Social Media E-Discovery: Process & Technology

Todays Presenters

John Patzakis CEO X1 Discovery, Inc.

Don Swanson President Five Star Legal and Compliance Systems, Inc.

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?

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: http://en.wikipedia.org/wiki/List_of_social_networking_websites

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

Preservation
Regulatory

Example, Financial Industry FINRA Notice 10-6 and Notice 11-39 (SEA Rule 17a4; NASD Rule 3110; http://www.iterasi.com/2011/finra-notification-11-39-social-mediawebsite-requirements 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

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

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 plaintiffs Facebook user name and password Publically available information provided good cause basis

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.

Example Facebook Metadata Fields

Field
created_time

Description
When a post or message on Facebook was created Unique identifier of a message thread All recipients of a message by name Unique id number of a wall post medium used to post a Facebook item (i.e., from an from iPhone) Unique id of the item poster/author Unique id of a users account

thread_id recipients post_id application

user_id account_id

Limitations of Facebook Download Your Information (DYI) Feature

Omitted Data:
1. Various contributed or re-posted content to other accounts. (i.e. pictures on friends 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

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

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

Social Media: Collection, Review and Production

Don Swanson

Social Media: Collection, Review and Production

Print Screen

Social Media: Collection, Review and Production

Print Screen

Screen Capture

Social Media: Collection, Review and Production

Forensic Analysis

Facebook Download

Social Media: Collection, Review and Production

DEMO

Conclusion

Questions?

Conclusion

Contact Information
John Patzakis CEO X1 Discovery, Inc. 877-999-1347 JPatzakis@X1Discovery.com Don Swanson Five Star Legal and Compliance Systems, Inc. 800-699-0199 don@fivestarlegal.com