e-discovery and social media: evolving litigation...
TRANSCRIPT
E-Discovery and Social Media: Evolving Litigation Challenges Preserving and Collecting Tweets, Facebook Postings, LinkedIn Updates and Other Content
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WEDNESDAY, MAY 9, 2012
Presenting a live 90-minute webinar with interactive Q&A
Anthony J. Diana, Partner, Mayer Brown, New York
Daniel L. Regard, Managing Director, iDiscovery Solutions, Washington, D.C.
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Social Media DC Litigation Support Managers Caucus
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Imagine Discovery … Every phone is tracked
Every person is tracked
Every comment is recorded
Every object is tracked
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Social Media and
Other Data
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A Shopping Trip With Social Media
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A Shopping Trip With Social Media
Just hung out with Dan (again). I love Whole Foods. It’s a beautiful place.
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Digital Footprint
How often you eat
How much you eat
General health
People in the home
Economic status
Driving habits
Friends and associates
Home location
Living Social
Park Mobile
Grocery IQ
Yelp
AT&T
Foursquare
Google E-mail
Loyalty Card
Bank of America
Technology
Who Else Bought This Data?
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How Many Computers Are In The
Room? Antikythera Mechanism, 140 A.D.
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Antikythera Mechanism, 140 A.D.
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Laptops Desktops Tablets Cell Phones Watches Smart Keys Digital Music Thumb Drives Air Cards MiFi Devices Cameras
Telephones Clocks Hearing Aids Printers Pace Makers Multimedia Control Building Access Cards Bluetooth Headsets AV Projector Photocopier Noise Canceling Headphones
Wireless Mouse Fax Machine Calculator
Video Monitors
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We Are Not Discussing Individuals snooping
Government searches under 4th amendment
ISP providers selling data
Attorneys advertising services
Social Media (and other accumulated data) in civil discovery.
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Social Media: Wikipedia
The use of web-based and mobile technologies to turn
communication into an interactive dialogue
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Social Media: Revised
The ability to (unintentionally) easily publish (much)
information to a (very) large group of people (who will use
it to their advantage).
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The iPhone & Data Create Data
Consume Data
Collect Data
Connect Data
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Create Data Phone Call Text Message E-Mail Facebook Twitter Photos Video Voice Commands
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Consume Data Google
Maps
Periodicals
Reading Books
Listening to Music
Surfing the Web…
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Collect Data Today
GPS Location Cell Tower Location WiFi Hotspot Location IP Address Pitch Yaw Acceleration NEWS Sound Light
Tomorrow…
Temperature Barometric Pressure Humidity Biometrics Body Fat Proximity Thermal Imagery Visual Tracking Air Quality Emotion
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Collect Data Today
GPS Location Cell Tower Location WiFi Hotspot Location IP Address Pitch Yaw Acceleration NEWS Sound Light
Tomorrow…
Temperature Barometric Pressure Humidity Biometrics Body Fat Proximity Thermal Imagery Visual Tracking Air Quality Emotion
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Connect Data Ethernet (wire) Cellular (10 mi.) WiMax (4-8 mi.) WiFi (150-300’) Bluetooth (30’) RFID (30’) Infrared (10’) NFC (1.5”)
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Smart Phone Summary Who you call
What you read
Where you are
What's around you
What you buy
What you connect to
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Smart Phone Summary Who you call
What you read
Where you are
What's around you
What you buy
What you connect to
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Starbucks
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Cell Phone Tracking
35,000 Data Points in 6 Months
Technology
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Technology
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“The future is already here, it’s just not
evenly distributed.”
William Gibson, Sci-Fi Author
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Case Law
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It’s Just Discovery The scope of discovery into social media sites requires the application of basic discovery principles in a novel context.
Offenback v. L.M. Bowman, Inc., (M.D. Pa., June 22, 2011)
Case Law
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The Issues The issues are relevance and burden.
Mackelprang v. Fidelity Nat’l Title Agency of Nev., (D. Nev. Jan. 9, 2007)
Quigley Corp. v. Karkus, (E.D. Pa. May 15, 2009)
Case Law
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Use in Litigation? Social media the “great equalizer” for e-discovery
Very common in criminal and matrimonial cases E-discovery no longer confined to complex commercial litigations
A source of burden and risk for plaintiffs Personal injury/products liability cases Employment actions Class actions
Equal access to information Individuals/plaintiffs have more information in public domain
More information for jury selection
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Use in Litigation? With more information available, early resolution of cases more likely
If evidence collected, analyzed and reliable: Know where individual was during important times Know who individual was communicating with during important times Know what was said during important times Know dispositive information/admissions
Increasing importance of embarrassing personal information
Even if not directly relevant, can influence settlement value Obtaining this information may depend on method of collection
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Legally Publically Available
Purchase (?)
Discovery under the FRCP
Possession, Custody and Control
3rd party subpoena
Authentication
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Collection and Use? Stored Communications Act protects Social Media companies from third-party requests
Government requests an exception
Social media content under “possession, custody and control” of party subject to request
Standard in document requests Even if content stored at third-parties Employee’s personal accounts?
Dependant on social media policy Do employees conduct business on these accounts? Does it contain relevant information?
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Collection and Use? Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010)
Employer sought to make use of messages on Facebook, MySpace and other sites from the employee about the employer. Federal judge ruled that one-to-one messages are considered private and that “wall postings” may be considered private depending on the privacy settings. Since Crispin’s privacy settings were set to allow only friends to view his postings, they are considered as private as email.
Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010) Romano fell off a Steelcase Inc. office chair and claimed injuries that prevented her from work and leisure activities. Information publicly available on social networking sites countered statements made by Romano. Defendant, Steelcase Inc., sought to discover messages and postings from Facebook and MySpace. Romano responded that those communications were protected as they were private. The Judge ruled that “Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action.” Present and historical (deleted) messages were deemed discoverable.
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Admissibility/Authentication of social media evidence is important Rule 901: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
Collection and Use?
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Laying the Groundwork for Authenticity
Trace originating IP back to subject’s computer
Obtain subscriber information for the subject account
Tie-back sent items to a source (smartphone)
Time-line communications to book-end subject communication
Get data for timeline from… email, phone calls, on-line repository or forensic review of hard drive, smartphone
Establish password-protected nature of the account
Party to a communication testifies as to authenticity
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Practicalities
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How to Collect Complexity of the Data
Structured database Linked content Layered content Different types of content (video, audio)
Challenges and burdens Lack of legal guidance Lack of technical support Difficulties in reviewing for relevance Privacy issues with personal sites—limiting collection to relevant information
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How to Collect No easy answers
Third parties likely host the data No access to “back-end” of database Customer can obtain data through front-end application
Facebook now has download and print features
Print from public access site May be acceptable is some circumstances
Technology developing to allow for “forensic” collection Including capturing links and layered content
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Ethics
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Avoid Ethical Pitfalls Friending Issues
“Deceptive” friending?
Whom can you friend? Opposing counsel? Parties to a dispute in which you are counsel?
Can you try to “friend” a party to get personal information about her from Facebook, MySpace, or similar sites?
If you ask her directly? Have a third-party, such as PI, try to friend her without divulging that the PI works for you? Create a false persona and try to friend her?
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Avoid Ethical Pitfalls Friending Issues
Philadelphia Bar Op. No. 2009-02 (Mar. 2009) Want to obtain information to impeach witness Ask third-party to try to friend third-party witness Would not disclose relationship between third-party and counsel
Result?
Multiple violations: deceptive communication, making a false statement to another. Model Rule 8.4(c), involving dishonest conduct
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Avoid Ethical Pitfalls Fake Profiles
What about creating fake profiles? An attorney was reprimanded because he hid his real identity and posed as a teacher and posted on www.classmates.com that another teacher had engaged in sex with students. In re Carpenter, 95 P.3d 203 (Or. 2004)
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Avoid Ethical Pitfalls Conflicts of Interest
With whom are you communicating? What if it is with a party with an adverse interest to a client of the firm (Model Rules 1.7, 4.2)
What if you learn information from a non-client that must be kept confidential because it is a prospective client (Model Rule 1.18) Obtaining this confidential information could lead to disqualification with respect to existing clients who would like to know that information
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Avoid Ethical Pitfalls Interactive Issue Summary
Very little risk with passive review, but the more interactive, the more dangerous:
Contact with represented party
See Oregon Bar Ass’n Op. No. 2001-164
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Help!!! Sedona Conference WG1, WG6
Masters Conference for Legal Professionals
7th Circuit Pilot Program for ESI
SDNY Pilot Program for Complex Cases
Electronic Frontier Foundation
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Take Away More than “Social”
Wide Spread
Under Appreciated
It will be there FOREVER
It’s Just Data
Normal Discovery
Consider 3rd Party Subpoena’s
No Civil Privilege of “Privacy”
Burden and Relevancy
Don’t "Social Engineer”
Plan for Admission
Thought Leadership Groups
Pilot Programs
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Governor Earl Long
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Thank You Dan Regard Intelligent Discovery Solutions
3000 K Street NW, Ste 330
Washington DC 20007
Tel: 202-459-7877
Anthony Diana Mayer Brown, LLP
1675 Broadway
New York, NY 10019
Tel: 212-506-2542
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References I
Sedona Principles 2nd Ed. , 2007
Sedona Int'l Principles, 2011
FRCP 45
FRCP 26
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References II
ABA Model Rules of Professional Conduct
Stored Communications Act
Cell phone data storage sheet
“Social Media”, Melinda Levitt, 2011.
“Reasonable expectations of privacy”, Robert McArthur, 2001.
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