discovery of social media: the seventh circuit e-discovery pilot … · 2013. 4. 11. · seventh...

Discovery of SocialMedia: TheSeventh CircuitE-Discovery PilotProgramRonald L. Lipinski, Seyfarth Shaw LLP

Jay C. Carle, Seyfarth Shaw LLP

04/05/2013

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

©2013 Seyfarth Shaw LLP2 |

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


Definition & Scope of Use

• Social media is:• Shared

• Interactive

• Internet-based

• Dynamic

• Collaborative

• Utilizes multiple data types

• Ubiquitous

• As of December 2012, 67% of onlineadults use social networking. (Pew

Research Center)

• 22% of Fortune 500 companies nowhave public-facing blogs. Sedona Conference

Primer on Social Media


Social Media as Discovery Target

• Communications on these websites can often revealimportant information about individuals– includinginformation that may support, undermine or entirelyrefute claims or lead to counter claims.


Social Media as Discovery Target (cont.)

• Communications on these websites can often revealimportant information about individuals– includinginformation that may support, undermine or entirelyrefute claims or lead to counter claims.

• Many social media tools are now being formally orinformally adopted for business communication.• The employer may be the subscriber and certain

employees/positions may maintain accounts for officialcommunication.

• Business units, departments or employees may informally adoptsocial media tools for marketing, or internal/project-basedcommunication.


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’” andthat “the challenge is to ‘define appropriately broad limits … onthe discovery ability of social communications.” Offenback v. L.M.

Bowman, Inc., 2011 WL 2491371 (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


Discoverability, Generally

• In addressing the discoverability of social media, wetypically analyze three questions:

• Is social media relevant to the claims or defenses at issue in yourlitigation?

• If so, is it within your possession, custody, or control?

• And, finally, is there anything else that may preclude or limitdiscovery of social media content?


Discoverability, Generally (cont.)

• There is a duty to preserve (andpotentially produce) potentiallyrelevant information oncelitigation is pending orreasonably anticipated as longas it is in your possession,custody or control.• For the party filing the legal action, the

duty to be triggered before thecomplaint is filed.

• How can this standard be appliedto social media?


Discoverability: Relevance

• Relevance depends on the facts and circumstances ofeach case.• Very difficult to determine, especially early on.

• Nevertheless, Social Media should be on everyone’s initialchecklist (like email, loose files, etc,)

• What social media information could be PotentiallyRelevant?• 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.


Discoverability: Possession, Custody &Control

• Possession, custody or control:the terms are listed in thedisjunctive.

• Contractual limitations or legalrestrictions on disclosure will notnecessarily bar production underRule 34– still within the scope ofRule 34.

• Ownership is NOT determinative;it is merely a “control” factor.


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 somejurisdictions, 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 theparty has retained “any right or ability to influence the person in whosepossession the documents lie.”


Informal Discovery

• Investigate public profiles (i.e., Internet and socialmedia site searches)• The amount of publicly available information that can be

uncovered depends upon what social networking site the personuses and the security/privacy settings the person has activatedon the site (if any).

• User’s postings, list of friends, shared photos and videos, and othervaluable information are often publically available.

• There are a number of tools available that will “crawl” publicwebsites and download changes and new content.


Informal Discovery: Limitations

• “Friending” under pretext• Subterfuge “friending” could violate Professional

Conduct Rules “because the plannedcommunication by the third party with the [victim] isdeceptive.” Philadelphia Bar Association opinion 2009-02,

dated March 2009

• “The rules of ethics impose limits on how attorneysmay obtain information that is not publiclyavailable, particularly from opposing parties whoare represented by counsel…Those rules bar anattorney from making an ex parte friend request ofa represented party.” San Diego County Bar Association

Legal Ethics Opinion 2011-2, May 24, 2011


Informal Discovery: Limitations (cont.)

• Obtaining access through perceived coercion

• Pietrylo v Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J.September 25, 2009)

• One employee provided uninvited members of management with her accessinformation to a private MySpace discussion group where disgruntledemployees could negatively comment about their jobs.

• The management viewed the discussion group page and fired a number ofemployees as a result.

• In the resulting litigation, the defendants were found to be in violation ofthe federal and state versions of the Stored Communications Act whichmake it an offense to access stored communications intentionallywithout authorization

• The jury found that the employee who provided access to management had feltcoerced, and so the access was not authorized.


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 electroniccommunication.

• Prohibition on unauthorized disclosure to third parties of privatecommunications in temporary storage or kept for backup.

• Statute also bars third parties from improperly accessingcommunication maintained by such entities.

• Remote Computing Service Providers

• Entity provides the public computer storage or processing services bymeans of an electronic communications system

• Broader prohibition on unauthorized disclosure to third parties.


The Stored Communications Act (cont.)

• SCA applies to informationgenerated using social media.• O'Grady v. Superior Court, 139

Cal.App.4th 1423, 1448 (Cal.App.2006)

• Subpoena to email service provider of webjournal could not be enforced due to theSCA.

• Crispin v. Christian Audigier, Inc. 2010WL 2293238, 6(C.D.Cal.) (C.D.Cal.,2010);

• The court found portions of an individual’ssocial networking sites designated as“private” to be secure information under thefederal Stored Communications Act.


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 noprovision in the SCA allowing disclosure of information inresponse to a civil subpoena.

• If it is necessary to obtain protected communicationsdirectly from ISP, SCA permits it with the consent of theuser/subscriber.

• If voluntary consent cannot be obtained, the requestingparty may seek a court order compelling theuser/subscriber to provide consent.• Risk that evidence may be lost while consent is sought.

• ISP can be notified requesting party is seeking consent andasked to preserve.


Third Party Subpoenas

• Aside from request to preserve, a party can ask court toissue a preservation subpoena to the ISP.• Court must have jurisdiction over ISP.

• Preservation subpoena would not compel ISP to divulge contentsof communications, just preserve the communications.


Interrogatories & Document Requests

• Courts are willing to require users to produce socialnetworking information in response to reasonablytailored 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, ormodifications to profiles) and all status updates, message, wallcomments.

• The court acknowledged that the “[d]iscovery of [social networkingsites] requires the application of basic discovery principles in a novelcontext”

• 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 wouldbe maintained as private was not a legitimate basis for shielding discovery.


Interrogatories & Document Requests(cont.)

• Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup.Ct. Sept. 21, 2010).• The defendant requested discovery of public & private content

from the plaintiff’s Facebook and MySpace accounts, and theplaintiff objected to the production of the private content.

• The plaintiff was ordered to provide the defendant with access toprivate postings from both media sites.

• The court reasoned that information contradicting the plaintiff’s claimswas included on the public sections of the plaintiff’s social media siteand, therefore, it was reasonable to believe that the private sectionsmight contain additional relevant information.

• In its opinion, the court cited Facebook and MySpace policies, whichwarn users they should have “no expectation of privacy.”


Employee Personal Accounts

• Is there an obligation to preserve and produce relevantsocial media content posted/communicated by anemployee 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 174459 (N.D.Cal.Jan. 22, 2007)

• Others may order organizations to produce content created usingpersonal accounts.

• Helmert v. Butterball, 2010 WL 2179180 (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.4th 1047(January 13, 2011)


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 acquisitionsof custodian computers)

• The “How”

• Expensive options vs. cheaper options (You get what you pay for.)

• Proportionality considerations MUST be factored into yourrecommendations/decisions.


Chain of Custody

• Use of personal accounts toaccess, preserve and collectsocial media data puts thecollector squarely in thechain of custody• Producing such data may result

in the collector becoming awitness and forced to testify


Authenticity

• Even if one is able to clear the high hurtle of obtainingdata from a social media site, an equally dauntingchallenge 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…


Authenticity

• Courts have consistently beencautious when admitting social mediadata.• Judges have become online “friends” with a

party in order to authenticate postings,photos, captions and comments. Barnes v. CUSNashville, LLC.

• Courts have allowed printed copies with timedate stamps to corroborate facts. Treat v. TomKelley Buick Pontiac GMC, Inc.

• Courts have used circumstantial evidenceassociated with the creation of the data (i.e.metadata and hash tags) to authenticatesocial media content. Lorraine v. Markel Am.Insur. Co.

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Production Format

• Production format turns on whether the receiving partyneeds 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 inreasonably useable, searchable format (with or withoutmetadata).

• Static images/hard copy print outs may be acceptable in some cases.

• Benefits and drawbacks to each production option.


Preservation & Collection Tools

• There is no “best” solution for preserving social mediadata. 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 pastTweets of a specified user (up to 3200 past tweets) and any newTweets in real-time without generating a formal “follow” request

• FaceBook’s “Download Your Information" utility.

• LinkedIn print to PDF feature



• NextPoint “cloud preservation”

• “Automatically archive social media and website data withultimate control.”

• PageFreezer

• “PageFreezer uses crawling technology, similar to that of Google, totake snapshots of websites.”

• X1 Social Discovery

• “the industry's first investigative solution specifically designed foreDiscovery and computer forensics professionals to effectivelyaddress social media content, website collection, webmail, andYouTube video capture, in one single interface.”



• 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 andexported?

• 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?


Contact Information

Ronald L. Lipinski, [email protected](312) 460-5879

Jay C. Carle, [email protected](312) 460-6426


discovery of social media: the seventh circuit e-discovery pilot … · 2013. 4. 11. · seventh...

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