ediscovery: a comprehensive view and social media … · • confidentiality, security &...

EDISCOVERY: A COMPREHENSIVE VIEW AND

SOCIAL MEDIA IMPACT

JOSEPH J. BAMBARA

IN HOUSE COUNSEL UCNY,INC.

NEW YORK, NEW YORK

EMAIL: [email protected]

WEB: HTTP://WWW.UCNY.COM

TWITTER: HTTP://WWW.TWITTER.COM/JBESQUIRE7

NATALIE S. FEHER, ESQ. EDISCOVERY COUNSEL

COMPLETE DISCOVERY SOURCE 345 PARK AVENUE | NEW YORK, NY 10154 (212) 813-7091 | (646) 271-0735 (MOBILE)

EMAIL: [email protected]

WEB: HTTP://WWW.CDSLEGAL.COM

EDISCOVERY

EDISCOVERY: COMPREHENSIVE VIEW

• NATURE OF CLAIMS: THE NEED TO UNDERSTAND THE CLAIMS OR DEFENSES IN ORDER TO REQUEST OF LIMIT THE RELEVANT ELECTRONICALLY STORED INFORMATION THAT PERTAINS TO THE MATTER.

• SCOPE OF EDISCOVERY: FOCUS ON THE APPLICABLE PROCEDURAL RULES WHICH LIMIT THE ESI THAT CAN BE REQUESTED PURSUANT TO DISCOVERY RULES.

• LEGAL HOLD: WILL FOCUS ON THE OBLIGATION OF PARTIES TO PRESERVE ESI WHEN A “TRIGGERING” EVENT OCCURS AND THE MYRIAD OF LEGAL DIRECTIVES IN INSTITUTING A LEGAL HOLD TO ENSURE ESI IS NOT DESTROYED.

• SEARCH METHODS AND PROTOCOL FOR ESI; INSPECTION OF COMPUTER SYSTEMS AND THE CHAIN OF CUSTODY TO ENSURE AUTHENTICITY OF ESI AND OTHER ISSUES THAT COULD AFFECT ITS ADMISSIBILITY.

• FORMS OF PRODUCTION INCLUDING NATIVE FILES, JPEG AND PDF AS WELL AS THEIR EFFECT ON EDISCOVERY.

EDISCOVERY

EDISCOVERY: COMPREHENSIVE VIEW

•  LIMITATIONS AND PROTECTIONS AFFORDED LITIGANTS IN EDISCOVERY PROCEEDINGS.

•  OBJECTIONS BASED ON ESI NOT BEING REASONABLE ACCESSIBLE, BURDENSOME, RELEVANCE, OVERBROAD, COST ALLOCATION/PROPORTIONALITY, SAMPLING AND THEIR EFFECT ON ESI DISCLOSURE.

•  SPOLIATION OF ESI INCLUDING CULPABILITY AND RELEVANCE.

•  SANCTIONS INCLUDING AN ADVERSE INFERENCE INSTRUCTION, MONETARY AWARDS AND EVEN CRIMINAL PENALTIES INCLUDING JAIL.

SOCIAL NETWORKS AND EDISCOVERY

FACEBOOK, TWITTER & GOOGLE PLUS: E-DISCOVERY ESSENTIALS FOR ESI •  CONFIDENTIALITY, SECURITY & E-DISCOVERY RISKS ASSOCIATED WITH SOCIAL NETWORKS

•  CHALLENGES IN PRESERVING AND COLLECTING DATA FROM SOCIAL MEDIA SITES

•  CORPORATE SOCIAL NETWORKING: HOW EACH SITE CREATES ITS OWN ESI HURDLE

E-DISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT

•  HOW TO PRESERVE & COLLECT TWEETS, FACEBOOK POSTS, AND OTHER CONTENT

•  WHAT COMPANIES CAN DO TO LIMIT THEIR E-DISCOVERY BURDENS WITH SOCIAL NETWORKING

•  KEYS TO INCORPORATE AN INFORMATION RETENTION PROGRAM THAT INCLUDES SOCIAL NETWORKS

•  DUTY OF PRESERVATION: SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT

ATTORNEY CLIENT PRIVILEGE CONCERNS WITH SOCIAL NETWORKS-WHAT YOUR CLIENT CAN & CAN'T DO

•  HOW TO COLLECT DATA WHEN IT'S OUT OF THE COMPANY'S CONTROL

•  KEYS TO MINIMIZE LIABILITY WITH CLIENT/ATTORNEY COMMUNICATION

•  HOW TO USE FACEBOK, GOOGLEPLUS & SOCIAL MEDIA FOR E-DISCOVERY INVESTIGATIONS

FIRST – A NOTE ABOUT THIS SESSION

•  WHY IS EDISCOVERY SO IMPORTANT?

•  EVERY MATTER INVOLVES SOME TYPE OF ELECTRONIC DATA.

•  FUNDAMENTAL CHANGES IN HOW PEOPLE MANAGE INFORMATION.

•  ESI CAN BE YOUR BEST FRIEND OR WORST ENEMY.

•  CURRENT DEVELOPMENTS IN THE PRACTICE OF LAW GIVE THOSE WITH

EDISCOVERY KNOWLEDGE AN ADVANTAGE.

THE ETHICS OF EDISCOVERY

•  IT IS IMPORTANT TO UNDERSTAND THE ETHICAL OBLIGATIONS OF ATTORNEYS SINCE OFTEN TIMES PARALEGALS ARE RUNNING THE SHOW:

•  MRPC 1.1 – A LAWYER SHALL PROVIDE COMPETENT REPRESENTATION TO A CLIENT

COMMENTS:

TO MAINTAIN THE REQUISITE KNOWLEDGE AND SKILL, A LAWYER SHOULD KEEP ABREAST OF CHANGES IN THE LAW AND ITS PRACTICE, INCLUDING THE BENEFITS AND RISKS ASSOCIATED WITH RELEVANT TECHNOLOGY…

•  MRPC 3.4 – FAIRNESS TO OPPOSING PARTY AND COUNSEL

•  MRPC 1.6 – CONFIDENTIALITY OF INFORMATION

•  MRPC 4.4 – RESPECT FOR RIGHTS OF THIRD PERSONS

•  DUTY TO COOPERATE UNDER FRCP 26(F) AND STATE EQUIVALENTS.

THE EDRM: A FLUID MODEL

THE 2006 EDISCOVERY AMENDMENTS

•  THE DEFINITION OF WHAT IS DISCOVERABLE: FRCP 26(A)(1), 33, AND 34;

•  DEALING WITH ESI EARLY: FRCP 16(B), 26(A), 26(F) AND FORM 35;

•  DESIGNATING THE FORMAT OF ESI: FRCP 34(B) AND FRCP 45;

•  DISCOVERY FROM SOURCES THAT ARE NOT REASONABLY ACCESSIBLE: FRCP 26(B)(2);

•  POST-PRODUCTION CLAIMS OF PRIVILEGE: FRCP 26(B)(5);

•  INTERROGATORIES AND PRODUCTION REQUESTS: FRCP 33, 34(A), AND (B).

•  “SAFE HARBOR” FOR INADVERTENT SPOLIATION: FRCP 37(E);

•  SUBPOENAS: FRCP 45.

• ALSO SEE: FEDERAL RULE OF EVIDENCE 502(B) LIMITATIONS OF AC/WP PRIVILEGE WAIVER

STRATEGIES FOR ASSESSING AN EDISCOVERY PROJECT

•  THE CASE ITSELF:

•  WHAT ARE THE UNDERLYING FACTS?

•  WHAT IS THE CASE WORTH?

•  WHAT IS THE TRIGGERING EVENT FOR PRESERVATION?

•  DATE RANGES/KEY WORDS/CUSTODIANS?

•  IDENTIFY YOUR CLIENT’S INTERNAL RESOURCES

•  PROPORTIONALITY IS A KEY CONCEPT IN EDISCOVERY.

Having to switch vendors or change gears mid-case can

cause significant delays, unnecessary costs, and threats to defensibility.

THE LEGAL PROFESSIONAL AS EXPLORER

EARLY CASE ASSESSMENT AND PREPARATION

•  LEGAL HOLD NOTICE - CONTENT DIFFERS BASED ON CASE FACTS AND CIRCUMSTANCES

GENERAL GUIDELINES:

-  SHOULD BE CONCISE AND WRITTEN IN PLAIN ENGLISH

-  DESCRIBE SUBJECT MATTER OF CASE

-  DATE RANGES OF ESI TO BE PRESERVED

-  COUNSEL SHOULD MONITOR COMPLIANCE REGULARLY

-  LEGAL HOLD NOTICES MAY BE SUBJECT TO DISCOVERY AND SHOULD BE DRAFTED ACCORDINGLY.

EARLY CASE ASSESSMENT AND PREPARATION

•  THE MEET AND CONFER – WHAT TO CONSIDER IN ADVANCE AND ESTABLISH BETWEEN THE PARTIES

•  PRESERVATION, IDENTIFICATION, SCOPE AND FORM •  CLAW BACK AGREEMENT •  PROTECTIVE ORDER FOR HIGHLY CONFIDENTIAL/PROPRIETARY

INFORMATION •  RELEVANT IT PERSONNEL SHOULD BE PREPARED FOR POTENTIAL WITNESS

TESTIMONY REGARDING COMPUTER SYSTEMS AND ESI PROCEDURES

•  PRELIMINARY CONFERENCE – COOPERATION IS KEY •  AVOID “DISCOVERY ABOUT DISCOVERY”

ZUBULAKE V. UBS WARBURG

•  SCOPE OF A PARTY'S DUTY TO PRESERVE ELECTRONIC EVIDENCE DURING THE COURSE OF LITIGATION;

•  DUTY TO MONITOR THEIR CLIENTS' COMPLIANCE WITH ELECTRONIC DATA PRESERVATION AND PRODUCTION;

•  DATA SAMPLING;

•  THE ABILITY FOR THE DISCLOSING PARTY TO SHIFT THE COSTS TO RESTORE LOST DATA

•  SANCTIONS FOR THE SPOLIATION (OR DESTRUCTION) OF ELECTRONIC EVIDENCE. •  ZUBULAKE V. UBS WARBURG, 217 F.R.D. 309 (S.D.N.Y. 2003).

•  ZUBULAKE V. UBS WARBURG, 220 F.R.D. 212 (S.D.N.Y. 2003).

•  ZUBULAKE V. UBS WARBURG, 2004 WL 1620866 (S.D.N.Y. JULY 20, 2004).

CASE LAW UPDATE – IMPORTANT RECENT OPINIONS PRESERVATION/SPOLIATION

• VOOM HOLDINGS LLC V. ECHOSTAR SATELLITE LLC, 2012 WL 265833 (N.Y. APP. DIV. JAN. 31, 2012).

DISCOVERABLE INFORMATION

• THOMPSON V. AUTOLIV ASP, INC., NO. 2:09-CV-01375-PMP-VCF, 2012 WL 2342928 (D. NEV. JUNE 20, 2012).

GOOD FAITH STANDARD

• PETER KIEWIT SONS’, INC. V. WALL STREET EQUITY GROUP, INC., NO. 8:10CV365, 2012 WL 1852048 (D. NEB. MAY 18, 2012).

REASONABLE EFFORTS

• D’ONOFRIO V. BOROUGH OF SEASIDE PARK, NO. 09-6220 (AET), 2012 WL 1949854 (D.N.J. MAY 30, 2012).

PROPORTIONALITY

• PIPPINS V. KPMG LLP, NO. 11 CIV. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. OCT. 7, 2011).

PROCESS FOR IDENTIFYING RESPONSIVE DOCUMENTS

• DA SILVA MOORE V. PUBLICIS GROUPE & MSL GROUP, NO. 11 CIV. 1279 (ALC) (AJP) (S.D.N.Y. FEB. 24, 2012).

PREVAILING PARTY COSTS •  SUBSECTION 4 OF SECTION 1920 UNDER FRCP 54(D)(1) PERMITS THE CLERK OR COURT

TO TAX AS COSTS “[F]EES FOR EXEMPLIFICATION AND COSTS OF MAKING COPIES OF ANY MATERIALS WHERE THE COPIES ARE NECESSARILY FOR USE IN THE CASE.”

•  NOT YET CLEAR WHAT THIS CONSTITUTES IN THE CONTEXT OF ELECTRONIC DISCOVERY.

•  RACE TIRES AMERICA, INC. V. HOOSIER RACING TIRE CORP., 3RD CIRCUIT COURT OF APPEAL CONSIDERED WHETHER SECTION 1920(4) AUTHORIZED THE DISTRICT COURT

TO TAX AN E-DISCOVERY VENDOR’S CHARGES FOR DATA COLLECTION, PRESERVATION, SEARCHING, CULLING, CONVERSION AND PRODUCTION AS EXEMPLIFICATION OR THE COST OF MAKING COPIES – THE COURT CONSTRUED NARROWLY AND DETERMINED THE PREVAILING PARTY WAS ONLY ENTITLED TO A

SMALL FRACTION OF COSTS – ANYTHING THAT WAS TECHNICALLY “MAKING COPIES” - BUT NOTHING ELSE

•  JARDIN V. DATALLEGRO, INC. DISTRICT COURT IN SOUTHERN DISTRICT OF CA AWARDED PREVAILING PARTY COSTS UNDER THIS SECTION FOR

CONVERTING ELECTRONIC DATA TO TIFF, BUT ALSO FOR PHYSICAL PRODUCTION OF DATA

SOLUTION? INCLUDE LANGUAGE IN THE CONTRACT THAT PROVIDES AN

ENTITLEMENT TO RECOVER ALL EXPENSES AND COSTS INCURRED AS A PREVAILING PARTY

Information Management

Identification

Preservation

Collection

Processing

Review

Analysis

Production Presentation

15% of Cost Riskiest Area Costliest Area

25% of Cost

60% of Cost

Planning Execution

Electronic Discovery Reference Model / © 2009 / edrm.net

BEST PRACTICES & COST CUTTING

Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb 24, 2012) • Employment maCer alleging discriminaIon and related claims • The predicIve coding “guinea pig” • A unique case of cooperaIon and disagreement

•  We agree on the benefits of predic@ve coding, just not the process implemented

in this case

• Technology-‐assisted review is as effecIve, if not more so, than manual review.

• Defendant’s transparency weigh in favor of process defensibility • What are some of the important lessons to be learned from this case?

DEVELOPMENTS IN TECHNOLOGY – PREDICTIVE CODING CASE LAW

SOCIAL NETWORKS AND EDISCOVERY

FACEBOOK, TWITTER & GOOGLE PLUS: E-DISCOVERY ESSENTIALS FOR ESI •  CONFIDENTIALITY, SECURITY & E-DISCOVERY RISKS ASSOCIATED WITH SOCIAL NETWORKS

•  CHALLENGES IN PRESERVING AND COLLECTING DATA FROM SOCIAL MEDIA SITES

•  CORPORATE SOCIAL NETWORKING: HOW EACH SITE CREATES ITS OWN ESI HURDLE

E-DISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT

•  HOW TO PRESERVE & COLLECT TWEETS, FACEBOOK POSTS, AND OTHER CONTENT

•  WHAT COMPANIES CAN DO TO LIMIT THEIR E-DISCOVERY BURDENS WITH SOCIAL NETWORKING

•  KEYS TO INCORPORATE AN INFORMATION RETENTION PROGRAM THAT INCLUDES SOCIAL NETWORKS

•  DUTY OF PRESERVATION: SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT


•  HOW TO COLLECT DATA WHEN IT'S OUT OF THE COMPANY'S CONTROL

•  KEYS TO MINIMIZE LIABILITY WITH CLIENT/ATTORNEY COMMUNICATION

•  HOW TO USE FACEBOK, GOOGLEPLUS & SOCIAL MEDIA FOR E-DISCOVERY INVESTIGATIONS

SOCIAL NETWORKS AND THE LAW

SOCIAL NETWORKS AN INTRODUCTION

•  SOCIAL NETWORKING THE FABRIC OF THE CURRENT INTERNET GENERATION.

•  SOCIAL NETWORKING SITES POPULAR AND USEFUL AT CONNECTING PEOPLE AND PUBLISHING THEIR PROFILES

•  TECHNOLOGY VENDORS HAVE EVEN CREATED SOCIAL APPLICATIONS SIMILAR IN DESIGN TO FACEBOOK, TWITTER AND WIKIPEDIA, BUT TAILORED FOR BUSINESS USE TO HELP LARGE CORPORATIONS TO CONNECT THEIR GEOGRAPHICALLY DIVERSE WORKFORCE.

•  A SOCIAL NETWORK SERVICE (“SNS”) FOCUSES ON BUILDING ONLINE COMMUNITIES OF PEOPLE WHO SHARE INTERESTS AND/OR ACTIVITIES, OR WHO ARE INTERESTED IN EXPLORING THE INTERESTS AND ACTIVITIES OF OTHERS.

•  SOCIAL NETWORK SERVICES ARE WEB BASED AND PROVIDE A VARIETY OF WAYS FOR USERS TO INTERACT, SUCH AS E-MAIL AND INSTANT MESSAGING SERVICES.

•  SEE HTTP://EN.WIKIPEDIA.ORG/WIKI/SOCIAL_NETWORK_SERVICE


Visualization of a Biblical Social Network done using IBM software ManyEyes See http://manyeyes.alphaworks.ibm.com/manyeyes/

SOCIAL NETWORKS AND THE LAW SOCIAL NETWORKING WEBSITES ARE THE CURRENT WAY TO COMMUNICATE AND SHARE

INFORMATION

•  THE MAIN TYPES OF SOCIAL NETWORKING SERVICES ARE THOSE WHICH CONTAIN: •  PARTICULAR DIRECTORY OF USERS (SUCH AS ALL CYBERSPACE ATTORNEYS),

•  MEANS TO CONNECT WITH LIKEMINDED MEMBERS (USUALLY WITH SELF-DESCRIPTION PAGES), AND

•  FUNCTIONALITY TO FIND/RECOMMEND TRUST SYSTEMS TO LINKED TO LIKEMINDED MEMBERS.

•  WITHIN THE CONTEXT OF THE SNS MEMBERS MAY COMMUNICATE USING TEXT AND/OR AUDIO/VIDEO CALLED WEB LOGS OR AS THEY ARE MORE COMMONLY KNOWN “BLOGS”.

•  THESE BLOGS ARE ONLINE JOURNALS OR COMMENTARIES WHICH MAY REFERENCE OR LINK OTHER BLOGS AND WEBSITES.

•  THE GROWING NUMBERS OF SOCIAL NETWORKING SITES INCLUDE: •  FACEBOOK, GOOGLE+, TWITTER AND 100+ OTHER SITES

•  FOR THE PROFESSIONALS: LINKEDIN.COM.

•  THE NUMBERS INDICATE THE POPULARITY. •  FACEBOOK HAS 1.1 BILLION REGISTERED USERS

•  TWITTER HAS 500 MILLION REGISTERED USERS

•  GOOGLE+ HAS 343 MILLION REGISTERED USERS

•  LINKEDIN HAS 225 MILLION REGISTERED USERS

SEE, EXPANDEDRAMBLINGS.COM/INDEX.PHP/RESOURCE-HOW-MANY-PEOPLE-USE-THE-TOP-SOCIAL-MEDIA/


FACEBOOK.COM

•  CREATE A PROFILE PAGE

•  LINK WITH FRIENDS

•  THE WEBSITE'S NAME REFERS TO THE PAPER FACEBOOKS DEPICTING MEMBERS OF A CAMPUS COMMUNITY THAT SOME US COLLEGES AND PREPARATORY SCHOOLS GIVE TO INCOMING STUDENTS, FACULTY, AND STAFF AS A WAY TO GET TO KNOW OTHER PEOPLE ON CAMPUS.

•  FOUNDED CAMBRIDGE, MASSACHUSETTS(FEBRUARY 4, 2004) HEADQUARTERS PALO ALTO, CALIFORNIA

•  DUBLIN, IRELAND (INTERNATIONAL HEADQUARTERS FOR EUROPE, AFRICA, MIDDLE EAST)

•  MARK ZUCKERBERG, FOUNDER AND CEO

•  REVENUE 100 BILLION USD (2012 EST.)

•  EMPLOYEES 2000+ (2012 EST)

SOCIAL NETWORKS AND THE LAW FACEBOOK.COM PRIVACY SETTINGS

THESE SETTING DETERMINE WHO CAN SEE WHAT YOU POST ON THE SITE

JUST BEFORE IPO FACEBOOK IS LET ITS NEARLY 1 BILLION USERS VOTE ON CHANGES TO ITS PRIVACY POLICY.

THE PREVIOUSLY ANNOUNCED CHANGES INCLUDE NEW SECTIONS EXPLAINING HOW IT USES PEOPLE'S INFORMATION. THE UPDATES ALSO REFLECT RECENTLY ADDED FEATURES SUCH AS A NEW PROFILE FORMAT CALLED TIMELINE.

THE NEW POLICY ALSO OPENS UP THE POSSIBILITY FOR FACEBOOK TO START SHOWING PEOPLE ADS ON OUTSIDE WEBSITES, TARGETING THE PITCHES TO INTERESTS AND HOBBIES THAT USERS EXPRESS ON FACEBOOK.

THE COMPANY HAD ANNOUNCED THE CHANGES IN MAY, A WEEK BEFORE ITS INITIAL PUBLIC OFFERING OF STOCK. FACEBOOK'S HIGHLY ANTICIPATED IPO LANDED WITH A THUD, CLOSING JUST 23 CENTS ABOVE ITS $38 OFFERING PRICE ON ITS FIRST TRADING DAY. THE STOCK HAS DECLINED ANOTHER 26 PERCENT IN THE TWO WEEKS SINCE THEN.

THIS IS THE SECOND TIME FACEBOOK INC. IS LETTING USERS VOTE ON POLICY CHANGES. THE FIRST TIME WAS IN 2009 WHEN FACEBOOK WAS A MUCH SMALLER, PRIVATELY HELD COMPANY WITH FEWER THAN 200 MILLION USERS.

IT MAY BE THE LAST TIME, THOUGH.

THIRTY PERCENT OF FACEBOOK'S 900 MILLION USERS, OR 270 MILLION PEOPLE, HAVE TO VOTE ON THE CHANGES — FOR OR AGAINST — TO HAVE THE PROCESS BE BINDING. OTHERWISE, FACEBOOK CONSIDERS THE VOTE "ADVISORY."

SOCIAL NETWORKS AND THE LAW TWITTER.COM

•  CREATE A PROFILE PAGE

•  FOLLOW OTHER USERS

SOCIAL NETWORKS AND THE LAW TWITTER.COM USAGE

Twitter's traffic comes from SMS, Instant Message, Mobile Web, and all various API projects out there as well as web traffic. 60% of our web traffic comes from outside the United States and this chart shows the top ten non-US sources

TWITTER LAWSUITS: OBVIOUS PARODY

fake profile identified

Social Networks and the Law

See, http://www.followfamous.com/twitter/Fake_Celebrity.asp

TONY LA RUSSA V. TWITTER

¡  LA RUSSA’S COMPLAINT IN SF SUPERIOR CT. AGAINST TWITTER AND JOHN DOES FOR EMBARRASSING TWEETS 1.  LOST 2 OUT OF 3, BUT WE MADE IT OUT OF CHICAGO

WITHOUT ONE DRUNK DRIVING INCIDENT OR DEAD PITCHER… I’D CALL THAT AN I-55 SERIES

2.  FORTUNATELY, IAN SNELL SUCKS NOW… WHEN MOLINA AND DUNCAN JR. GO DEEP OFF OF YOU IT’S TIME TO LOOK YOURSELF IN THE MIRROR, HAVE AN ICE-

3.  DRINKING A COLD ZIMA AND WISHING **** HANCOCK WAS ALIVE, I BET HE COULD’VE GOTTEN JACK WILSON OUT

¡  TWITTER “RATIFIED” POSTERS’ CONDUCT

¡  NUMEROUS CAUSES OF ACTION

¡  TWITTER CLAIMS IT’S AN OBVIOUS PARODY BUT THERE IS ONLY ONE INDICATION THAT STATES: “BIO PARODIES ARE FUN FOR EVERYONE”

¡  TWITTER NOW PROVIDING “VERIFIED ACCOUNTS”

Social Networks and the Law

SOCIAL NETWORKS AND THE LAW LINKEDIN.COM – PROFESSIONAL NETWORK

•  CREATE PROFILE

•  ADD CONTACT

•  JOIN GROUPS

•  FIND JOBS

•  ASK QUESTIONS

•  LINKEDIN POSITIONS ITSELF AS THE ONLY CREDIBLE BUSINESS-ORIENTED ALTERNATIVE TO FACEBOOK.

•  WHILE FACEBOOK IS PERCEIVED A UTILITY FOR MANAGING ONE’S SOCIAL LIFE OUTSIDE OF WORK, LINKEDIN HAS BECOME THE PLACE TO GO TO MANAGE ONE’S PROFESSIONAL CAREER.

•  THE SITE HAS ATTRACTED ALMOST 120 MILLION USERS, AND IS GROWING AT 1 MILLION USERS PER MONTH

•  ITS USER DEMOGRAPHICS. ACCORDING TO THE COMPANY, THE AVERAGE LINKEDIN USER IS OLDER AND MORE AFFLUENT THAN THE FACEBOOK USER (DUE TO FACEBOOK’S ROOTS IN THE COLLEGE STUDENT MARKET). LINKEDIN USERS ALSO HAVE A HIGHER INCOME THAN READERS OF ESTABLISHED MANAGEMENT-ORIENTED PUBLICATIONS LIKE FORBES AND FORTUNE.

•  ITS SOCIAL DATA REPOSITORY. THE DATA IN LINKEDIN — WHICH HAS YET TO BE EXPLOITED BY THIRD-PARTY DEVELOPERS — INCLUDES A DETAILED JOB HISTORY, RECOMMENDATIONS AND INTRODUCTIONS.

EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT

SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT •  MOST PEOPLE USE SOCIAL MEDIA IN THEIR EVERYDAY LIVES. 91 PERCENT OF TODAY’S ONLINE ADULTS USE SOCIAL MEDIA

REGULARLY, AND “[S]OCIAL NETWORKING CONTINUES TO REIGN AS THE TOP ONLINE ACTIVITY.” EVERY MINUTE, SOCIAL MEDIA

USERS CREATE MASSIVE AMOUNTS OF DATA: FACEBOOK USERS SHARE 684,478 PIECES OF CONTENT; TUMBLR BLOG OWNERS PUBLISH 27,778 NEW POSTS; YOUTUBE USERS UPLOAD 48 HOURS OF NEW VIDEO; FOURSQUARE USERS PERFORM 2,083 CHECK-INS; FLICKR USERS ADD 3,125 NEW PHOTOS, AND INSTAGRAM USERS SHARE 3,600 NEW PHOTOS.6 IN ADDITION, THERE ARE HUNDREDS OF OTHER SOCIAL NETWORKING WEBSITES, EACH CATERING TO A DIFFERENT DEMOGRAPHIC. SEE

HTTP://WWW.MARKETINGCHARTS.COM/DIRECT/FACEBOOK-REIGNS-AS-TOP-GLOBAL-SOCNET-19399/

•  NOT SURPRISINGLY, THIS EXPANDING MEDIUM OF SOCIAL MEDIA FACTORS INTO THE MAJORITY OF CASES IN SOME RESPECT OR ANOTHER.

•  SOCIAL MEDIA EVIDENCE CAN INCLUDE PHOTOGRAPHS, STATUS UPDATES, PEOPLE’S LOCATION AT A CERTAIN TIME, AND DIRECT COMMUNICATIONS TO A DEFENDANT’S SOCIAL MEDIA ACCOUNTS, AMONG OTHERS.

•  THE CHANGING WAYS TO SHARE INFORMATION VIA SOCIAL MEDIA HAS RESULTED IN A DIGITAL GOLDMINE OF POTENTIAL EVIDENCE: PROFILES, LISTS OF FRIENDS, GROUP MEMBERSHIPS, MESSAGES, CHAT LOGS, TWEETS, PHOTOS, VIDEOS, TAGS, GPS

LOCATIONS, CHECK-INS, LOGIN TIMETABLES AND MORE.

•  WITH THE ADVENT OF LOCATION-BASED SERVICES OFFERED BY SOCIAL MEDIA COMPANIES LIKE FACEBOOK, TWITTER, AND FOURSQUARE, PRECISE LOCATION INFORMATION WILL BE INCREASINGLY MAINTAINED IN THE ORDINARY COURSE OF BUSINESS

AND SUBJECT TO THE SAME SUBPOENAS AND SEARCH WARRANTS.10 NOT SURPRISINGLY, EACH SOCIAL MEDIA SUBPOENA CAN YIELD ADMISSIONS OR INCRIMINATING PHOTOS, AMONG OTHER EVIDENCE.


SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: HOW DO WE GAIN ACCESS

IF WE AGREE THAT SOCIAL NETWORKING SITES MAY YIELD RELEVANT INFORMATION, THE ISSUE THEN IS GAINING ACCESS TO THAT INFORMATION. IN EEOC V. SIMPLY STORAGE MANAGEMENT, LLC, 270 F.R.D. 430 (S.D. IND. 2010), THE COURT STATED THAT DISCOVERY OF SOCIAL NETWORKING SITES INVOLVES THE APPLICATION OF BASIC DISCOVERY PRINCIPLES, JUST IN A NOVEL CONTEXT.

THE STORED COMMUNICATIONS ACT (SCA), 18 U.S.C. § 2702(A)(1) AND (2), PROHIBITS INTERNET OPERATORS FROM “KNOWINGLY DIVULGING TO ANY PERSON OR ENTITY THE CONTENTS OF A COMMUNICATION WHILE IN ELECTRONIC STORAGE…” OR “WHICH IS CARRIED OR MAINTAINED ON THAT SERVICE.”

ACCORDINGLY, THE SCA PROVIDES THAT INTERNET OPERATORS MUST HAVE THE “LAWFUL CONSENT OF THE ORIGINATOR OR AN ADDRESSEE OR INTENDED RECIPIENT” BEFORE REVEALING SOCIAL NETWORKING INFORMATION.

SEE HTTP://WWW.NAAG.ORG/OBTAINING-INFORMATION-FROM-SOCIAL-NETWORKING-SITES.PHP..


SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT

THERE ARE SEVERAL METHODS FOR OBTAINING SOCIAL NETWORKING DATA; THE METHOD YOU CHOOSE WILL DEPEND ON THE TYPE OF INFORMATION SOUGHT.

BASIC SUBSCRIBER INFORMATION, INCLUDING THE USER’S NAME, EMAIL ADDRESS AND OTHER CONTACT INFORMATION, CAN BE OBTAINED WITH A SUBPOENA. NOTE THAT SUBSCRIBER INFORMATION IS NOT DIFFICULT TO OBTAIN BECAUSE COURTS HAVE CONSISTENTLY HELD THAT A PERSON LACKS A LEGITIMATE EXPECTATION OF PRIVACY IN INTERNET SUBSCRIBER INFORMATION. CRISPIN V. CHRISTIAN AUDIGER, INC., 717 F. SUPP. 2D 965 (S.D. CAL. 2010) IS AN EXAMPLE OF SUCH A RULING.

TO OBTAIN MORE INFORMATION, SECTION 2703 OF THE SCA AFFORDS WHAT IS REFERRED TO COMMONLY AS A 2703(D) ORDER (OR JUST A “D ORDER”) AND REQUIRES SPECIFIC AND ARTICULABLE FACTS THAT THE DATA IS RELEVANT AND MATERIAL TO THE INVESTIGATION. WITHOUT PRIOR NOTICE, A 2703(D) WILL RETURN ONLY NON-CONTENT.

FOR EXAMPLE, IT WILL SHOW YOU THE RECIPIENT OF THE MESSAGE, BUT NOT ITS CONTENT, FOR WHICH YOU NEED A 2703(D) ORDER WITH PRIOR NOTICE. THIS ARTICLE WILL NOT ADDRESS THE ADDITIONAL METHODS OF USING A SEARCH WARRANT OR OBTAINING A WIRETAP ORDER.

EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT

MOST SOCIAL NETWORKING SITES HAVE PRIVACY SETTINGS RANGING FROM COMMUNICATIONS ONLY ACCESSIBLE BY A SELECT GROUP OF INDIVIDUALS TO COMMUNICATIONS SHARED WITH THE PUBLIC AT LARGE. COURTS HAVE LOOKED TO THESE PRIVACY SETTINGS WHEN DETERMINING WHETHER POSTINGS ON THESE SITES ARE ADMISSIBLE.

PRIVACY SETTINGS RELEVANT . IN DEXTER V. DEXTER, 2007 OHIO APP. LEXIS 2388, THE APPELLATE COURT FOUND THAT A PARENT SEEKING CUSTODY COULD NOT CLAIM AN EXPECTATION OF PRIVACY IN PUBLICLY ACCESSIBLE WRITINGS ON MYSPACE DETAILING HER INTENT TO COMMENCE USING DRUGS AFTER THE CUSTODY PROCEEDINGS.

PRIVACY SETTINGS NOT RELEVANT .IN ROMANO V. STEELCASE, INC., 907 N.Y.S. 2D 650 (2010), A NEW YORK COURT HELD THAT A SOCIAL NETWORKING USER HAS NO REASONABLE EXPECTATION OF PRIVACY, NOTWITHSTANDING HER PRIVACY SETTINGS, BECAUSE THE SITES DO NOT GUARANTEE COMPLETE PRIVACY. IN THIS PERSONAL INJURY CASE, THE COURT FOUND THAT BASED ON THE PUBLICLY AVAILABLE INFORMATION IN ROMANO’S PROFILE, IT WAS REASONABLE TO CONCLUDE THAT THE PRIVATE PORTIONS OF HER PROFILES WOULD CONTAIN MORE EVIDENCE THAT WOULD BE MATERIAL AND RELEVANT TO THE DEFENSE OF THE ACTION.

IN DECIDING WHETHER TO ALLOW A PARTY TO DISCOVER SOCIAL NETWORKING INFORMATION, COURTS WILL LOOK AT THESE FACTORS: 1) WHETHER THE CONTENT IS MATERIAL AND NECESSARY TO PROVE THE CASE; 2) WHETHER THERE ARE OTHER MEANS TO OBTAIN THE CONTENT; AND 3) WHETHER THE REQUESTING PARTY WILL BE AT A DISADVANTAGE WITHOUT ACCESSING THE CONTENT


SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: PRIVACY SETTINGS

IN US V. MEREGILDO, NO. 11 CR 576 (WHP) (S.D.N.Y.; AUG 10, 2012) DEFENDANT MOVED TO SUPPRESS EVIDENCE SEIZED FROM HIS FACEBOOK ACCOUNT PURSUANT TO A WARRANT. HE DID NOT CONTEST THE FINDING OF PROBABLE CAUSE, BUT HE TOOK ISSUE WITH THE GOVERNMENT’S METHODS USED TO PROCURE EVIDENCE IN SUPPORT OF ITS SHOWING OF PROBABLE CAUSE. THE GOVERNMENT USED A COOPERATING WITNESS WHO WAS "FRIENDS" WITH DEFENDANT ON FACEBOOK AND WHO PROVIDED DEFENDANT 'S INFORMATION (PICTURES OR POSTS?) THAT SUPPORTED THE WARRANT APPLICATION.

DEFENDANT ARGUED THAT THE GOVERNMENT'S PROCUREMENT OF INFORMATION IN THIS WAY VIOLATED HIS FOURTH AMENDMENT RIGHTS.

THE COURT IN MEREGILDO SAID THERE IS NO FOURTH AMENDMENT PROTECTION IN PUBLICLY POSTED INFORMATION. ON THE OTHER HAND, IF USERS POST CONTENT TO SOCIAL NETWORKING SITES “USING MORE SECURE PRIVACY SETTINGS, [THIS] REFLECT[S] THE USER’S INTENT TO PRESERVE INFORMATION AS PRIVATE” AND MAY ENGENDER FOURTH AMENDMENT PROTECTION. DEFENDANT ’S FACEBOOK PROFILE DID NOT FALL INTO THE SECOND CATEGORY. HIS PROFILE ALLOWED HIS FRIENDS TO VIEW A LIST OF ALL HIS OTHER FRIENDS, “AS WELL AS MESSAGES AND PHOTOGRAPHS THAT DEFENDANT AND OTHERS POSTED TO DEFENDANT ’S PROFILE.” BECAUSE THE PRIVACY SETTINGS ALLOWED DEFENDANT ’S FRIENDS TO VIEW MATERIALS POSTED TO HIS FACEBOOK ACCOUNT, THE COURT SAYS THERE WAS NO FOURTH AMENDMENT VIOLATION.

..


SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: CIVIL CASE DISCOVERY

IN A CIVIL CASE, YOU CAN OBTAIN INFORMATION FROM SOCIAL NETWORKING SITES :

•  ISSUE A REQUEST FOR PRODUCTION FOR SPECIFIC DOCUMENTS OR CONTENT FROM A PARTY’S PROFILE.

•  REQUEST THE PARTY’S LOG-ON NAME AND PASSWORD IN AN INTERROGATORY OR DEPOSITION.

•  REQUEST COURT ORDER PROVIDING FOR DISCLOSURE AND/OR IN CAMERA REVIEW.

IN OFFENBACK V. L.M. BOWMAN, INC., 2011 U.S. DIST, LEXIS 66432 (M.D. PA.), A CASE IN WHICH OFFENBACK WAS SUING FOR INJURIES SUSTAINED IN AN AUTOMOBILE ACCIDENT, THE DISTRICT COURT WAS ASKED TO REVIEW OFFENBACK’S FACEBOOK PROFILE FOR RELEVANT INFORMATION. THE COURT DID FIND A POSTING ABOUT OFFENBACK’S RECENT MULTI-STATE TRIP BY MOTORCYCLE, WHICH WAS CLEARLY RELEVANT. THE COURT DID STATE, HOWEVER, THAT OFFENBACK SHOULD HAVE PRODUCED THE INFORMATION WITHOUT THE COURT BEING INVOLVED IN THE DISCOVERY PROCESS. IN BARNES V. CUS NASHVILLE, INC., 2010 WL 2265668 (M.D. TENN.), THE COURT WENT SO FAR AS TO OFFER TO PROVIDE AN IN CAMERA REVIEW BY BECOMING FRIENDS WITH THE PARTY IN ORDER TO REVIEW THEIR PRIVATE CONTENT FOR RELEVANCY!

NOTE: STATE AND LOCAL BAR ASSOCIATIONS ARE STARTING TO ADDRESS SOCIAL NETWORKING THROUGH ETHICS OPINIONS. SEE HTTP://WWW.NAAG.ORG/OBTAINING-INFORMATION-FROM-SOCIAL-NETWORKING-SITES.PHP..

EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT: DISCOVERY

IN 2010, THE NEW YORK STATE BAR ISSUED OPINION #943 CONCLUDING THAT AN ATTORNEY WHO REPRESENTS A CLIENT IN A PENDING LITIGATION MAY ACCESS AND REVIEW THE PUBLIC SOCIAL NETWORK PAGES OF ANOTHER PARTY TO SEARCH FOR POTENTIAL IMPEACHMENT MATERIAL, AS LONG AS THE ATTORNEY DOES NOT “FRIEND” THE OTHER PARTY OR DIRECT A THIRD PERSON TO DO SO.

THE NEW YORK CITY BAR IN OPINION 2010-2, AND THE SAN DIEGO COUNTY BAR IN OPINION 2011-2, FOUND THAT AN ATTORNEY MAY NOT ATTEMPT TO GAIN ACCESS TO A SOCIAL NETWORKING SITE UNDER FALSE PRETENSES, EITHER DIRECTLY OR THROUGH AN AGENT.

NOTE: THAT JUST BECAUSE SOCIAL NETWORKING SITES MAY CONTAIN INFORMATION ABOUT THE OTHER PARTIES IN YOUR CASE DOES NOT MEAN YOU CAN GET UNFETTERED ACCESS TO THEIR PRIVACY POSTINGS.

MOST RECENTLY, A FEDERAL MAGISTRATE DENIED A MOTION TO COMPEL PRODUCTION OF FACEBOOK RECORDS IN A PERSONAL INJURY CASE. IN TOMPKINS V. DETROIT METRO AIRPORT, 2012 U.S. DIST. 5749 (E.D. MICH. JANUARY 18, 2012), PLAINTIFF LELA TOMPKINS CLAIMED BACK INJURIES FROM A SLIP AND FALL AT THE AIRPORT. THE AIRPORT ARGUED THAT TOMPKINS MIGHT BE FAKING HER INJURIES, REFERENCING PHOTOS FROM HER PUBLIC FACEBOOK PAGES AND SURVEILLANCE PHOTOS SHOWING HER HOLDING A SMALL DOG AND PUSHING A GROCERY CART. THE AIRPORT SOUGHT TO COMPEL PRODUCTION OF TOMPKINS’ ENTIRE FACEBOOK ACCOUNT. THE DISTRICT COURT FOUND THE REQUEST OVERBROAD AND THE FACEBOOK DATA NOT RELEVANT, SINCE PUSHING A GROCERY CART WOULD NOT BE INCONSISTENT WITH TOMPKINS’ CLAIMS. THE COURT SAID THAT HAD THE PHOTOS SHOWN HER PLAYING GOLF OR LIFTING HEAVY PACKAGES, THE AIRPORT WOULD HAVE HAD A STRONGER ARGUMENT.

NARROWLY TAILORED DISCOVERY REQUESTS FOR SOCIAL NETWORKING DATA ARE MORE LIKELY TO BE APPROVED BY THE COURT AND RETURN INFORMATION RELEVANT TO YOUR CASE.

..

E DISCOVERY AND THE LAW E DISCOVERY AND ADMISSIBILITY

THERE IS A LACK OF CASE LAW ADDRESSING ADMISSIBILITY OF ESI. IN, LORRAINE V. MARKEL AM. INS. CO., 241 F.R.D. 534 (D. MD. 2007). LORRAINE SHED A 100-PAGE OPINION ON AUTHENTICATION OF ELECTRONIC EVIDENCE -- IT INVOLVED A YACHT STRUCK BY LIGHTNING. THE COURT DISAPPOINTED BY THE PARTIES' FAILURE TO AUTHENTICATE EVEN BASIC E-MAILS (ATTACHED TO THE PARTIES’ MOTIONS AS EXHIBITS), TOOK THE OPPORTUNITY TO PROVIDE MUCH NEEDED GUIDANCE.

AS THERE IS NOT MUCH IN THE WAY OF CASE LAW ADDRESSING ADMISSIBILITY OF ESI. THE LORRAINE COURT GUIDELINES PROVIDE SOME BASICS. THE LITIGANT PURPORTING TO INTRODUCE ESI AS EVIDENCE (CLOUD BASED DATA) MUST BE ABLE TO DEMONSTRATE THAT THE ESI IS RELEVANT AND AUTHENTIC, THAT IT IS NOT PRECLUDED BY THE HEARSAY RULE (OR FITS WITHIN ONE OF ITS EXCEPTIONS) OR THE BEST EVIDENCE RULE, AND THAT ITS PROBATIVE VALUE IS NOT SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE.

AS NOTED BY THE COURT IN LORRAINE: WHETHER ESI IS ADMISSIBLE INTO EVIDENCE IS DETERMINED BY A COLLECTION OF EVIDENCE RULES THAT PRESENT THEMSELVES LIKE A SERIES OF HURDLES TO BE CLEARED BY

THE PROPONENT OF THE EVIDENCE. FAILURE TO CLEAR ANY OF THESE EVIDENTIARY HURDLES MEANS THAT THE EVIDENCE WILL NOT BE ADMISSIBLE. WHENEVER ESI IS OFFERED AS EVIDENCE, EITHER AT TRIAL OR IN SUMMARY JUDGMENT, THE FOLLOWING EVIDENCE RULES MUST BE CONSIDERED: (1) IS THE ESI RELEVANT AS DETERMINED BY RULE 401 (DOES IT HAVE ANY TENDENCY TO MAKE SOME FACT THAT IS OF CONSEQUENCE TO THE LITIGATION MORE OR LESS PROBABLE THAN IT OTHERWISE WOULD BE); (2) IF RELEVANT UNDER 401, IS IT AUTHENTIC AS REQUIRED BY RULE 901(A) (CAN THE PROPONENT SHOW THAT THE ESI IS WHAT IT PURPORTS TO BE); (3) IF THE ESI IS OFFERED FOR ITS SUBSTANTIVE TRUTH, IS IT HEARSAY AS DEFINED BY RULE 801, AND IF SO, IS IT COVERED BY AN APPLICABLE EXCEPTION (RULES 803, 804 AND 807); (4) IS THE FORM OF THE ESI THAT IS BEING OFFERED AS EVIDENCE AN ORIGINAL OR DUPLICATE UNDER THE ORIGINAL WRITING RULE, OF IF NOT, IS THERE ADMISSIBLE SECONDARY EVIDENCE TO PROVE THE CONTENT OF THE ESI (RULES 1001-1008); AND (5) IS THE PROBATIVE VALUE OF THE ESI SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE OR ONE OF THE OTHER FACTORS IDENTIFIED BY RULE 403, SUCH THAT IT SHOULD BE EXCLUDED DESPITE ITS RELEVANCE.

THESE EVIDENTIARY HURDLES ARE CHALLENGING WHEN IT COMES TO SNS, ESPECIALLY AUTHENTICITY AND HEARSAY. THE PROPONENT OF EVEN AN EMAIL, BLOG POST, IM, TWEET, OR OTHER COMMUNICATION MAY NEED TO SECURE DECLARATIONS, DEPOSITION TESTIMONY, OR EVEN LIVE TESTIMONY OF THE AUTHOR(S), THE RECIPIENT(S), THE DATA CUSTODIAN.

THE SAME ANALYSIS MUST BE CONSIDERED FOR EACH AND EVERY SUCH COMMUNICATION. BIG JOB

SEE, WWW.INFOLAWGROUP.COM/2009/11/ARTICLES/CLOUD-COMPUTING-1/LEGAL-IMPLICATIONS-OF-CLOUD-COMPUTING-PART-FOUR-EDISCOVERY-AND-DIGITAL-EVIDENCE/

FACEBOOK, TWITTER & GOOGLE PLUS: EDISCOVERY ESSENTIALS FOR ESI ADMISSIBILITY: FACTUAL PREDICATE

DAVIDS V. NOVARTIS PHARMACEUTICALS CORP., NO. CV06-0431 (E.D.N.Y. FEB. 24, 2012) THE COURT REQUIRED A DEMONSTRATION OF A FACTUAL PREDICATE BEFORE REQUIRING A PARTY TO TURN OVER THE USERNAME AND PASSWORD TO HER SOCIAL MEDIA ACCOUNT. THE CASE INVOLVED A PLAINTIFF WHO CLAIMED A RARE JAW DISORDER CAUSED BY THE DEFENDANT’S DRUG. IN DISCOVERY, THE DEFENDANT SOUGHT THE PLAINTIFF’S SIGNATURE ON A RELEASE THAT WOULD ALLOW IT TO REVIEW THE PLAINTIFF’S PERSONAL PICTURES AND INFORMATION FROM HER SOCIAL NETWORKING ACCOUNTS. THE PLAINTIFF REFUSED AND PRODUCED ONLY PUBLICLY AVAILABLE INFORMATION FROM FACEBOOK. SHE REFUSED TO TURN OVER ITEMS HIDDEN USING FACEBOOK’S PRIVACY SETTINGS, CLAIMING THAT THE DEFENDANT’S REQUEST WAS AN OVERLY BROAD FISHING EXPEDITION. THE DEFENDANT FILED A MOTION TO COMPEL THE PLAINTIFF TO SUPPLY HER FACEBOOK LOGIN CREDENTIALS, ASSERTING THAT THE INFORMATION WAS DISCOVERABLE SINCE IT RELATED DIRECTLY TO HER CLAIM OF ONGOING SUFFERING. THE DEFENDANT ALSO BASED ITS CLAIM ON THE PLAINTIFF’S FACEBOOK PROFILE PICTURE, IN WHICH SHE WAS SMILING. DESPITE THIS CLAIM, THE DEFENDANT DID NOT INQUIRE ABOUT THE FACEBOOK ACTIVITY AT THE PLAINTIFF’S DEPOSITION, SO THE ONLY EVIDENCE IT HAD WAS HER PICTURE. THE COURT NOTED THAT SINCE NEITHER THE FEDERAL APPELLATE OR DISTRICT COURT HAD ADDRESSED THE ISSUE, IT WAS REQUIRED TO ANALYZE THE ISSUE UNDER NEW YORK STATE LAW. THE JUDGE HELD THAT THE REQUEST FOR LOGIN INFORMATION WITHOUT A FACTUAL PREDICATE WAS “TANTAMOUNT TO A FISHING EXPEDITION.” HE FURTHER RULED THAT OTHER PUBLIC POSTINGS MUST SUPPORT AN INFERENCE THAT OTHER RELEVANT INFORMATION MUST EXIST ON THE SITE. THE COURT ALSO FOUND THAT ONE PICTURE OF THE PLAINTIFF ALLEGEDLY SMILING DID NOT CONTRADICT HER CLAIM OF SUFFERING OR WARRANT A FURTHER INTRUSION INTO HER SOCIAL MEDIA ACCOUNT. THUS, IT DENIED THE DEFENDANT’S MOTION. SEE, HTTP://WWW.JDSUPRA.COM/POST/DOCUMENTVIEWER.ASPX?FID=373345BC-F1FC-45D1-BB6F-3FDF2E15D8C7/

39

EDISCOVERY AND SOCIAL MEDIA ADMISSIBILITY: FISHING EXPEDITION

IN CHILES V NOVARTIS PHARMACEUTICALS CORP., UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDAJACKSONVILLE DIVISION : MARCH ,2012 A DIFFERENT CASE, THE DEFENDANT WAS THE SAME, NOVARTIS PHARMACEUTICALS. AND THE SUBJECT DEALT WITH THE SAME MEDICAL DRUG, ZOMETA, AND THE SAME MEDICAL CONDITION, OSTEONECROSIS OF THE JAW. AND THE LAW FIRM IS THE SAME, HOLLINGSWORTH. THE RESULT ISN’T MUCH DIFFERENT EITHER. NOVARTIS MADE BROAD CLAIMS ABOUT WANTING UNFETTERED

ACCESS TO THE FACEBOOK ACCOUNT OF THE PLAINTIFF THAT TOOK THE DRUG, HOPING FOR A NO-HOLDS BARRED FISHING EXPEDITION THROUGH THE PLAINTIFF’S LIFE. THE COURT HOWEVER, STUCK TO RELEVANCE, AND SHOT DOWN 99% OF THE DEFENDANT’S FISHING ATTEMPT. DEFENDANT’S BROAD DEMANDS WERE FOR THE PLAINTIFF TO:

(1) PRODUCE THE LOG-IN INFORMATION TO HIS FACEBOOK ACCOUNT AND ANY OTHER SOCIAL NETWORKING WEBSITES HE MAY

BELONG TO; AND

(2) EXECUTE A WAIVER ALLOWING DEFENDANT TO DIRECTLY OBTAIN THESE MATERIALS HELD IN THE CORRESPONDING DATABASES; OR, IN THE ALTERNATIVE, DIRECTING PLAINTIFF TO PRODUCE ALL PHOTOGRAPHS ADDED TO ANY SOCIAL NETWORKING WEBSITE

THAT DEPICT PLAINTIFF FROM THE DATE OF THE DEVELOPMENT OF HIS ALLEGED INJURY, REGARDLESS OF WHO POSTED THE PHOTOGRAPH.

THE COURT: THAT NOVARTIS WAS CLEARLY OVERREACHING, AND SAID THAT HOLLINGSWORTH’S DEMAND WAS NOT “REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE” AND THAT THIS WAS “THE PROVERBIAL FISHING EXPEDITION.”

AS AN ALTERNATIVE TO STRIKING DOWN THE ENTIRE REQUEST, THE PLAINTIFF HAD SUGGESTED THAT IF THERE WERE PICTURES OF THE PLAINTIFF ACTUALLY EATING (AND THEREFORE USING HIS JAW) THAT MIGHT BE DISCOVERABLE, AND THAT IS ALL THAT THE COURT GRANTED.

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ADMISSIBILITY: DOWNLOADING THE DATA

•  DATA OBTAINED FROM SOCIAL NETWORKING WEBSITES CONTINUES TO BECOME MORE ESSENTIAL TO DEVELOPING A PARTIES’ CASE.

•  PRODUCTION OF THAT DATA, HOWEVER, HAS BECOME MORE BURDENSOME FOR THE COMPANIES DEVELOPING THE TECHNOLOGY.

•  FACEBOOK HAS RECENTLY MADE MORE INFORMATION AVAILABLE TO BE DOWNLOADED BY AN INDIVIDUAL USER. THE NEW DATA PROVIDES EVEN GREATER HISTORICAL INFORMATION ABOUT FACEBOOK USERS. ACCORDING TO THE FACEBOOK PRIVACY BLOG,

“STARTING TODAY, YOU WILL BE ABLE TO DOWNLOAD AN EXPANDED ARCHIVE OF YOUR FACEBOOK ACCOUNT HISTORY. FIRST INTRODUCED IN 2010, DOWNLOAD YOUR INFORMATION LETS YOU GET A COPY OF WHAT YOU’VE SHARED ON FACEBOOK, SUCH AS PHOTOS, POSTS, MESSAGES, A LIST OF FRIENDS AND CHAT CONVERSATIONS. NOW YOU CAN ACCESS ADDITIONAL CATEGORIES OF INFORMATION, INCLUDING PREVIOUS NAMES, FRIEND REQUESTS YOU’VE MADE AND IP ADDRESSES YOU LOGGED IN FROM…”

eDiscovery and Social Media

ADMISSIBILITY: DOWNLOADING THE DATA NOW TWITTER IS LOOKING TO REMOVE THE BURDEN OF HAVING TO PRODUCE THE DATA THEMSELVES, BUT IN A DIFFERENT FASHION IN

PEOPLE V. HARRIS, —N.Y.S.2D—, 2012 N.Y. SLIP OP. 22109 (N.Y. CRIM. CT. APR. 20, 2012). IN THAT CASE THE DEFENDANT, MALCOLM HARRIS, ALONG WITH SEVERAL HUNDRED OTHER OCCUPY WALL STREET PROTESTERS, WERE CHARGED WITH DISORDERLY CONDUCT AFTER ALLEGEDLY MARCHING ON TO THE ROADWAY OF THE BROOKLYNBRIDGE. ON JANUARY 26, 2012, THE PEOPLE SENT A SUBPOENA DUCES TECUM TO TWITTER SEEKING THE DEFENDANT’S USER INFORMATION FOR HIS “@DESTRUCTUREMAL” TWITTER ACCOUNT, INCLUDING HIS EMAIL ADDRESS AND TWEETS POSTED FOR THE PERIOD OF SEPTEMBER 15, 2011 THROUGH DECEMBER 31, 2011. ON JANUARY 31, 2012, HOWEVER, AFTER TWITTER INFORMED THE DEFENDANT THAT HIS ACCOUNT HAD BEEN SUBPOENAED, THE DEFENDANT NOTIFIED TWITTER OF HIS INTENTION TO FILE A MOTION TO QUASH THE SUBPOENA. TWITTER THEN TOOK THE POSITION THAT IT WOULD NOT COMPLY WITH THE SUBPOENA UNTIL THE COURT RULED ON THE DEFENDANT’S MOTION.

WHEN RULING ON THE DEFENDANT’S MOTION TO QUASH, THE COURT NOTED THAT NEW YORK HAS YET TO RULE ON WHETHER A CRIMINAL DEFENDANT HAS STANDING TO QUASH A SUBPOENA ISSUED TO A THIRD-PARTY ONLINE SOCIAL NETWORKING SERVICE SEEKING TO OBTAIN THE DEFENDANT’S USER INFORMATION AND POSTINGS, EXCEPT FOR AN UNPUBLISHED SHORT FORM ORDER BY THE SUFFOLK SUPERIOR COURT (DOCKET NO. SUCR2011-11308), ON FEBRUARY 23, 2012.[NONETHELESS, THE COURT WROTE THAT IN THESE SITUATIONS AN ANALOGY COULD BE DRAWN TO BANK RECORD CASES WHERE COURTS HAVE CONSISTENTLY HELD THAT AN INDIVIDUAL HAS NO RIGHT TO CHALLENGE A SUBPOENA ISSUED AGAINST THE THIRD-PARTY BANK.

FURTHERMORE, RELYING ON THE THEORY THAT SINCE THE USER IS SENDING INFORMATION TO A THIRD PARTY, TWITTER, EVERY TIME A USER “TWEETS,” THEY GRANT A LICENSE FOR TWITTER – PURSUANT TO TWITTER’S TERMS OF SERVICE – TO DISTRIBUTE THAT INFORMATION TO ANYONE, ANY WAY, AND FOR ANY REASON IT CHOOSES. MOREOVER, WHILE THE “FOURTH AMENDMENT PROVIDES PROTECTION FOR OUR PHYSICAL HOMES, WE DO NOT HAVE A PHYSICAL ‘HOME’ ON THE INTERNET,” AND THE SECOND CIRCUIT IN UNITED STATES V LIFSHITZ, 369 F.3D 173 (2D CIR. 2004) HAS SPECIFICALLY STATED THAT INDIVIDUALS DO NOT HAVE A REASONABLE EXPECTATION OF PRIVACY IN INTERNET POSTINGS OR E-MAILS THAT HAVE REACHED THEIR RECIPIENTS: “[U]SERS WOULD LOGICALLY LACK A LEGITIMATE EXPECTATION OF PRIVACY IN MATERIALS INTENDED FOR PUBLICATION OR PUBLIC POSTING.”[ NOT GOOD DECISION; ANALOGY TO BANK RECORDS WEAK

ACCORDINGLY, ON APRIL 20, 2012, THE COURT FOUND THAT THE DEFENDANT HAD NO STANDING TO MOVE TO QUASH THE SUBPOENA, ESPECIALLY IN LIGHT OF THE FACT THAT THE DEFENDANT KNEW HIS TWEETS WERE “PUBLIC” AND WOULD BE DISTRIBUTED TO ESSENTIALLY ANYONE WITH INTERNET ACCESS. THUS, DUE TO THE DEFENDANT’S LACK OF STANDING AND UPON ANALYSIS OF THE STORED COMMUNICATIONS ACT, THE COURT ORDERED THAT TWITTER COMPLY WITH THE SUBPOENA.

eDiscovery and Social Media

EDISCOVERY AND SOCIAL MEDIA ADMISSIBILITY: INCONSISTENCY

•  THERE ARE OVER 900 PUBLISHED CASES INVOLVING SOCIAL MEDIA DISCOVERY FROM 2010 THROUGH 2013

•  COURTS ARE SCRAMBLING TO DEFINE WHAT ETHICAL AND ACCEPTABLE PRACTICES ARE. THERE HAVE BEEN SEVERAL OPINIONS ISSUED BY VARIOUS STATE BARS IN AN EFFORT TO DEFINE EXACTLY WHAT CONSTITUTES PERMISSIBLE SOCIAL MEDIA DISCOVERY. UNFORTUNATELY, AT THIS POINT, THE INCONSISTENCY AMONG OPINIONS IS THE

ONLY CONSISTENCY; OPINIONS ON THE LEGAL ETHICS INVOLVED VARY AS WIDELY AS THE DETAILS OF THE CASES THEMSELVES.

•  MANY LAWYERS ARE ACCESSING SOCIAL MEDIA PAGES DURING THE DISCOVERY PROCESS FOR WITNESSES AND OPPOSING PARTIES ALIKE AS A MATTER OF ROUTINE, USING THEIR FINDINGS TO AUGMENT

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EDISCOVERY AND SOCIAL MEDIA ADMISSIBILITY: CURRENT STATE OF THE LAW

SOME COURTS HAVE RULED THAT USING FACEBOOK, TWITTER, MYSPACE, OR OTHER SOCIAL MEDIA PLATFORMS IS FAIR GAME, SINCE THEY ARE PART OF THE INTERNET, AND THE INTERNET IS PUBLIC SPACE.

MORE RECENTLY, DECISIONS REGARDING THE ADMISSIBILITY OF E-DISCOVERY ARE GIVING SHAPE TO NEW PRECEDENCE:

•  BROAD REQUEST FOR INFORMATION AND UNRESTRICTED ACCESS TO SOCIAL

MEDIA PROFILES IN AN ATTEMPT TO FIND EVIDENCE WHICH CAN SUPPORT (OR

DESTROY) A CASE IS NOT ACCEPTABLE.

•  SPECIFIC REQUEST FOR SOCIAL MEDIA DISCOVERY SEEKING RELEVANT

INFORMATION, WHICH IS DIRECTLY RELATED TO ANY ALLEGATIONS IN QUESTION, IS

ACCEPTABLE.

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FOUNDATIONAL PROOF TO AUTHENTICATE THE WIDESPREAD USE OF SOCIAL MEDIA AND THE VARIATION IN PRACTICES AMONG SITES GIVE RISE TO

CONCERNS ABOUT THE RELIABILITY OF SUCH EVIDENCE. ALSO THERE ARE STILL RELATIVELY FEW REPORTED DECISIONS DISCUSSING THESE ISSUES. MANY LAWYERS STILL PRESENT “DIGITAL EVIDENCE” IN COURT

“PRINTED OUT ON PAPER”.

IN GRIFFIN V. STATE (192 MD. APP. 518; 995 A.2D 791, CERT. GRANTED, 415 MD. 607, 4 A.3D 513 (2010) ), THE COURT OVERTURNED A MURDER CONVICTION AT LEAST IN PART OVER A FAILURE TO AUTHENTICATE EVIDENCE OBTAINED FROM A MYSPACE PROFILE, WHICH HAD BEEN PRESENTED AS A PRINTOUT.

THE GRIFFIN COURT WASN’T WILLING TO ACCEPT THAT A DEFENDANT HAD POSTED THE TEXT, “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” JUST BECAUSE A PRINTOUT OF THE PAGE ATTRIBUTED THE QUOTE TO A USERNAME ASSOCIATED WITH THE

DEFENDANT. HOWEVER, THE RULING DOES NOTE THAT “AUTHENTICATION MAY BE PROVIDED BY OBTAINING INFORMATION DIRECTLY FROM THE SOCIAL MEDIA WEBSITE LINKING THE PROFILE AND POST TO THEIR CREATOR.”

THERE ARE AT LEAST TWO PRIMARY AUTHENTICATION QUESTIONS THAT A PROPONENT OF A PRINTOUT FROM

A SOCIAL MEDIA SITE MUST BE PREPARED TO ADDRESS:

•  IS THE EXHIBIT ACTUALLY A PRINTOUT FROM THE SOCIAL MEDIA SITE FROM WHICH IT PURPORTS TO BE?

•  CAN THE EXHIBITED POSTING BE SATISFACTORILY SHOWN TO HAVE ARISEN FROM THE SOURCE (THE PARTICULAR PERSON OR ENTITY) THAT THE PROPONENT CLAIMS?

SEE, HTTP://WWW.COURTS.STATE.MD.US/OPINIONS/COSA/2010/1132S08.PDF

EDISCOVERY HURDLES TO AVOID: KEYS TO PROTECT YOUR CLIENT FOUNDATIONAL PROOF TO AUTHENTICATE THE EMERGENCE OF SOCIAL MEDIA EVIDENCE DOES NOT NECESSARILY REQUIRE NEW RULES OF

EVIDENCE, “CIRCUMSTANTIAL EVIDENCE THAT TENDS TO AUTHENTICATE A COMMUNICATION IS SOMEWHAT UNIQUE TO EACH MEDIUM.”

HERE ARE SOME PRECEDENT CASES WHERE EMAILS, CHAT LOGS AND TEXTS WERE PROPERLY ADMITTED BASED UPON THEIR SUPPORTING AND UNIQUE METADATA AND OTHER CIRCUMSTANTIAL EVIDENCE THAT PROVIDE “IDENTIFYING CHARACTERISTICS.”

UNITED STATES V. SIDDIQUI, 235 F.3D1318 (11TH CIR.2000) E-MAILS PROPERLY AUTHENTICATED WHEN THEY

INCLUDED DEFENDANT’S E-MAIL ADDRESS, THE REPLY FUNCTION AUTOMATICALLY DIALED DEFENDANT’S E-MAIL ADDRESS AS SENDER, MESSAGES CONTAINED FACTUAL DETAILS KNOWN TO DEFENDANT, MESSAGES INCLUDED DEFENDANT’S 625*625 NICKNAME, AND OTHER METADATA.

DICKENS V. STATE, 175 MD.APP. 231, 927 A.2D 32 (2007) THREATENING TEXT MESSAGES RECEIVED BY VICTIM ON

CELL PHONE WERE PROPERLY AUTHENTICATED WHEN CIRCUMSTANTIAL EVIDENCE PROVIDED ADEQUATE PROOF MESSAGE WAS SENT BY DEFENDANT.

IN RE F.P.,878 A.2D91, 93-95 (PA.SUPER.CT.2005) INSTANT MESSAGES PROPERLY AUTHENTICATED THROUGH

CIRCUMSTANTIAL EVIDENCE INCLUDING SCREEN NAMES AND CONTEXT OF MESSAGES AND SURROUNDING CIRCUMSTANCES. SEE, HTTP://SCHOLAR.GOOGLE.COM/SCHOLAR_CASE?CASE=12883298010220688772&HL=EN&AS_SDT=2,5&AS_VIS=1


FOUNDATIONAL PROOF TO AUTHENTICATE

THE CASE OF STATE OF CONNECTICUT VS. ELECK, (CONN.APP. 2011), HIGHLIGHTS THE IMPORTANCE OF EMPLOYING BEST PRACTICES TECHNOLOGY TO COLLECT, PRESERVE AND PRODUCE SOCIAL MEDIA EVIDENCE.

IN THIS CASE, DEFENDANT ROBERT ELECK SOUGHT TO ADMIT FACEBOOK EVIDENCE AT TRIAL THAT WOULD HAVE

IMPEACHED A PROSECUTION WITNESS, SIMONE JUDWAY.

JUDWAY DENIED AUTHORSHIP OF THE FACEBOOK MESSAGES IN QUESTION, CLAIMING SOMEONE MUST HAVE

HACKED HER ACCOUNT, EVEN THOUGH THE EVIDENCE REVEALED THAT THE HACKING OCCURRED AFTER THE SUBJECT MESSAGES WERE SENT.

THE COURT DETERMINED THAT ELECK, WHO OFFERED ONLY A SIMPLE PRINTOUT OF THE FACEBOOK ITEMS, FAILED TO ADEQUATELY AUTHENTICATE THE DATA, RULING THAT “IT WAS INCUMBENT ON THE DEFENDANT, AS THE PROPONENT, TO ADVANCE OTHER FOUNDATIONAL PROOF TO AUTHENTICATE THAT THE PROFFERED MESSAGES DID, IN FACT, COME FROM JUDWAY AND NOT SIMPLY FROM HER FACEBOOK ACCOUNT.”

HTTP://WWW.LAW.COM/JSP/LAWTECHNOLOGYNEWS/PUBARTICLELTN.JSP?ID=1202513834341&SLRETURN=1

HTTP://WWW.JUD.CT.GOV/EXTERNAL/SUPAPP/CASES/AROAP/AP130/130AP531.PDF



STATE V. ELECK IS ANOTHER EXAMPLE OF WHY IT IS IMPORTANT TO COLLECT AND

PRESERVE TWEETS, FACEBOOK AND LINKEDIN ENTRIES IN A THOROUGH MANNER

WITH BEST-PRACTICES TECHNOLOGY SPECIFICALLY DESIGNED FOR LITIGATION

PURPOSES.

SOCIAL MEDIA TECHNOLOGY USES UNIQUE METADATA FIELDS ASSOCIATED WITH INDIVIDUAL SITE POSTS AND MESSAGES. ANY ONE OF THOSE ENTRIES OR A COMBINATION OF THEM CONTRASTED WITH OTHER ENTRIES CAN PROVIDE UNIQUE CIRCUMSTANTIAL EVIDENCE THAT CAN ESTABLISH FOUNDATIONAL PROOF OF AUTHORSHIP .

WHEN LAWYERS AND THEIR SERVICE PROVIDERS RELY ON SIMPLE SCREEN CAPTURES, PRINTOUTS OR EVEN

COMPLIANCE ARCHIVING SOLUTIONS THAT FAIL TO COLLECT AND PRESERVE ALL KEY METADATA TO ADMIT SOCIAL MEDIA INTO EVIDENCE, THEY RUN A SIGNIFICANT RISK OF HAVING KEY EVIDENCE IN SUPPORT OF THEIR CLIENT’S CASE DISALLOWED BY THE COURT.

SEE, HTTP://WWW.X1DISCOVERY.COM/SOCIAL_DISCOVERY.HTML AND /WHITEPAPER_SOCIAL_MEDIA.HTML



•  THE ANSWER TO AUTHENTICATING SOCIAL MEDIA EVIDENCE, IT IS TO COLLECT EVERYTHING- ALL IMAGES, METADATA, EMBEDDED CONTENT, OFF-SITE LINKS, RELATED POSTS OR TWEETS, AND ANYTHING ELSE ON A PAGE THAT CAN HELP AUTHENTICATE ANY ITEM.

•  USER PROFILES, ESPECIALLY INFORMATION FROM WHEN AN ACCOUNT WAS CREATED CAN CAPTURE SOME OF THE MOST USEFUL AND INCRIMINATING EVIDENCE, BECAUSE THAT’S WHEN USERS ARE ASKED TO SUPPLY PERSONAL AND IDENTIFYING INFORMATION.

•  WITH THE COST OF DATA STORAGE COLLAPSING, THERE IS NO REASON TO NOT COLLECT ALL POSSIBLE EVIDENCE FROM SOCIAL MEDIA ACCOUNTS. IN FACT, THE MORE DATA COLLECTED, THE EASIER IT WILL BE TO FIND CIRCUMSTANTIAL EVIDENCE THAT MAY BE NEEDED TO AUTHENTICATE SOCIAL MEDIA EVIDENCE.

SEE, HTTP://WWW.X1DISCOVERY.COM/SOCIAL_DISCOVERY.HTML AND /WHITEPAPER_SOCIAL_MEDIA.HTML

EDISCOVERY AND SOCIAL MEDIA EDISCOVERY RISKS ASSOCIATED WITH SOCIAL NETWORKS

•  EMPLOYEES ACCESSING SOCIAL MEDIA SITES FROM COMPANY COMPUTERS OR FROM PERSONAL DEVICES CONNECTED TO COMPANY NETWORKS COULD BE VICTIMIZED BY MALWARE, PHISHING AND SOCIAL ENGINEERING ATTACKS COULD RESULT IN SECURITY BREACHES AND LEGAL LIABILITY

•  IMPERSONATION ATTACKS ON SOCIAL NETWORKS CAN ALSO POSE LEGAL RISKS. IN THIS CASE, THE RISK INCLUDES FAKE FAN PAGES (E.G., NICK NOLTE) OR FRAUDULENT SOCIAL MEDIA PERSONAS THAT APPEAR TO BE LEGITIMATELY OPERATED

•  INFORMATION LEAKS ARE A RISK IN THE SOCIAL MEDIA CONTEXT; THEY COULD RESULT IN AN ADVERSE BUSINESS AND LEGAL IMPACT WHEN COMPROMISED CONFIDENTIAL INFORMATION.

50

EDISCOVERY AND SOCIAL MEDIA EDISCOVERY RISKS ASSOCIATED WITH SOCIAL NETWORKS

SOME USE THE TRUST USERS PLACE IN THE SOCIAL MEDIA PLATFORM ITSELF TO EFFECTUATE SECURITY BREACHES. FOR EXAMPLE, MOST WOULD FEEL FAIRLY COMFORTABLE CLICKING ON AN ADVERTISEMENT DISPLAYED ON FACEBOOK. THAT CLICK COULD RESULT IN AN INFECTION.

SEE HTTP://NEWS.TECHWORLD.COM/SECURITY/3308895/FACEBOOK-ADVERTS-INFECT-USERS-WITH-MALWARE/

ALSO COMMON IS A “PHISHING” EXPEDITION. THE BAD GUYS CREATE FAKE EMAIL NOTICES THAT APPEAR TO COME FROM SOCIAL MEDIA SITES. UNSUSPECTING USERS CLICK ON LINKS IN THESE EMAILS AND END UP PROVIDING SENSITIVE INFORMATION TO FAKE WEBSITES THAT LOOK LIKE THE SOCIAL MEDIA SITE THEY BELONG TO, OR DOWNLOADING MALWARE ONTO A COMPANY’S SYSTEM.

NOTE: MANY INDIVIDUALS USE THE SAME PASSWORDS AT MULTIPLE SITES AND DISCLOSING A SOCIAL MEDIA PASSWORD COULD ALSO AMOUNT TO PROVIDING THE PASSWORD TO THE NETWORK OF AN EMPLOYEE’S

EMPLOYER.

51


EDISCOVERY: RISKS ASSOCIATED WITH SOCIAL NETWORKS WHAT COMPANIES CAN DO TO LIMIT THEIR E-DISCOVERY BURDENS WITH SOCIAL NETWORKING

AS MENTIONED FACEBOOK THE NUMBER #2 WEBSITE IN THE WORLD HIT ONE BILLION USERS IN 2013, AND TWITTER WITNESSES AN AVERAGE OF 175 MILLION TWEETS PER DAY.

TAPPING INTO THIS METEORIC RISE IN POPULARITY, COMPANIES AND BUSINESS PROFESSIONALS HAVE WIDELY ADOPTED SOCIAL MEDIA. THIS STRATEGY MAKES SENSE. SOCIAL MEDIA IS A VALUABLE MARKETING TOOL THAT ALLOWS COMPANIES TO ENGAGE WITH CUSTOMERS ON A PERSONAL LEVEL. THROUGH POSTS, TWEETS, AND LIKES, COMPANIES CAN BUILD WHAT IS MOST IMPORTANT IN A WORKING RELATIONSHIP: TRUST. BUT ALONG WITH THESE BENEFITS COME THE RISKS OF MANAGING AND ARCHIVING THE RESULTING SOCIAL MEDIA RECORDS.

RISKS OF SOCIAL MEDIA:

RECORDS MANAGEMENT: GIVEN THE NEW AND WIDESPREAD SOCIAL MEDIA INTERACTIONS, SOCIAL MEDIA RECORDS MANAGEMENT IS A VULNERABILITY THAT CAN LEAVE A COMPANY SIMILARLY BRUISED. MANAGING PHYSICAL AND EMAIL RECORDS IS CURRENTLY A COMMON PRACTICE. MANAGING SOCIAL MEDIA RECORDS IS NOT. WITH SOCIAL MEDIA, NO LONGER ARE A COMPANY’S RECORDS FIRMLY UNDER ITS CONTROL. MANY INTERACTIONS TAKING PLACE OUTSIDE OF THE COMPANY’S NETWORK. COMMENTS CAN BE DELETED, AND TWEETS CAN BE RE-TWEETED AND SPREAD TO A MUCH LARGER AUDIENCE THAN INTENDED. THIS DATA IS OFTEN NOT CACHED, AND MAY ONLY BE STORED ON FACEBOOK OR TWITTER’S SERVERS. THIS MEANS THAT COLLECTING, ARCHIVING, AND MANAGING ALL SOCIAL MEDIA RECORDS IS DIFFICULT AND TEDIOUS.


WHAT COMPANIES CAN DO TO LIMIT THEIR E-DISCOVERY BURDENS WITH SOCIAL NETWORKING

REGULATORY RISKS: DIGITAL RECORDS ARE INCREASINGLY CONSIDERED LEGAL EQUALS TO ADVERTISING RECORDS. CHOOSING TO IGNORE REGULATION IS NO LONGER AN OPTION. HOWEVER, COMPLYING WITH THE CORRESPONDING REGULATIONS IS DEMANDING. EACH LIKE AND TWEET MUST COMPLY, AND CERTAIN PROFESSIONS MUST MEET EVEN TOUGHER STANDARDS. FOR INSTANCE, A FINANCIAL ADVISER MUST ARCHIVE EVERY INTERACTION ACCORDING TO STRICT INSTRUCTIONS AND CANNOT ENDORSE OR GIVE ADVICE ON A FINANCIAL INSTRUMENT WHILE ONLINE.

LITIGATION RISKS: BEYOND THE CHALLENGE OF THESE REGULATIONS, THE LITIGATION THREATS POSED BY THE MISMANAGEMENT OF SOCIAL MEDIA RECORDS ARE SIGNIFICANT. THE GARTNER GROUP PREDICTS THAT OVER HALF OF CORPORATE LITIGANTS WILL BE ORDERED TO PRODUCE SOCIAL MEDIA RECORDS DURING THE E-DISCOVERY PHASE OF A TRIAL BY THE END OF 2013. THESE RECORDS NEED TO BE ACCESSIBLE, RETAIN THEIR METADATA, AND COMPLY WITH LEGAL HOLDS. AS A RESULT, AN ESTIMATED 35% OF LITIGATION COSTS ARE DUE TO THE E-DISCOVERY PROCESS. STEEP FINES REACHING MILLIONS OF DOLLARS DUE TO SPOLIATION OR THE INABILITY TO PRODUCE THESE SOCIAL MEDIA RECORDS MAY CAUSE FURTHER COST AND LEGAL BURDENS.

DESPITE ITS POPULARITY, MANY COMPANIES HAVE ADOPTED A POLICY BANNING SOCIAL MEDIA. WORRIES ABOUT COMPLIANT RECORDS MANAGEMENT IS A KEY DRIVER OF THIS TIMIDITY. BUT THIS APPROACH PLACES A LIMIT ON A COMPANY’S POTENTIAL. DISREGARDING SOCIAL MEDIA CANNOT BE A SOLUTION FOR TODAY’S FIRMS.

SOLUTION: COMPANIES NEED TO FIND A WAY TO EMBRACE SOCIAL MEDIA WITHOUT THE RISKS OF ITS RECORDS. VENDORS LIKE ARCHIVESOCIAL HELPS CLIENTS COMPLY WITH REGULATIONS, ARCHIVE SOCIAL MEDIA RECORDS, AND STEEPLY REDUCE E-DISCOVERY BURDENS. THEY CAN FACILITATE SOCIAL MEDIA RECORDS MANAGEMENT.


TIP: INCORPORATE AN INFORMATION RETENTION PROGRAM THAT INCLUDES SOCIAL NETWORKS

FINANCIAL AS WELL AS MOST ENTERPRISE INSTITUTIONS ARE SUBJECT TO A VARIETY OF LEGAL AND REGULATORY OBLIGATIONS. SOME OF THESE DEAL WITH THE PRACTICE OF RETAINING AND DISPOSING OF DATA. OFTEN THERE ARE STIPULATIONS ON WHAT INFORMATION IS REQUIRED TO BE SAVED FOR ARCHIVAL AND RECOVERY PURPOSES AND FOR WHAT MINIMAL DURATION. THE USE OF SOCIAL MEDIA INTRODUCES ANOTHER VEHICLE OF COMMUNICATIONS, AND HENCE INFORMATION, THAT IS SUBJECT TO SUCH REQUIREMENTS.

THE NEW COMMUNICATIONS LEAD TO QUESTIONS OF PRACTICE AND APPLICABILITY.

IS USING THE FACEBOOK ―LIKE‖ CAPABILITY ON AN ARTICLE ON A POPULAR FINANCIAL NEWS SITE A RETAINABLE FORM OF COMMUNICATION?

COULD THIS ACTION BE CONSIDERED AN ENDORSEMENT AND SUBJECT TO PARTICULAR REGULATORY OVERSIGHT AND RETENTION REQUIREMENTS?

WITH THE ABILITY OF POSTS, TWEETS AND OTHER COMMUNICATIONS TO BE QUICKLY DELETED AND MODIFIED, WHAT OBLIGATIONS ARE EXPECTED OF FIRMS TO CAPTURE DATA IN REAL-TIME AS OPPOSED TO REGULAR SNAPSHOTS?

ON SOCIAL MEDIA SITES PREVIOUSLY PRIVATE COMMUNICATIONS ARE EXPOSED PUBLICLY DUE TO A CHANGE IN POLICIES OF A GIVEN SOCIAL MEDIA PROVIDER, HOW QUICKLY ARE FIRMS EXPECTED TO RETAIN SUCH COMMUNICATIONS?


KEYS TO INCORPORATE AN INFORMATION RETENTION PROGRAM THAT INCLUDES SOCIAL NETWORKS

MORE “RETENTION PROGRAM” CHALLENGES:

THE USE OF SOCIAL MEDIA PRESENTS SEVERAL CHALLENGES. THESE INCLUDE BUT ARE NOT LIMITED TO:

•  ASSOCIATES MIGHT BE ABLE TO ACCESS SOCIAL MEDIA FROM BOTH WITHIN AND EXTERNAL TO THE FINANCIAL INSTITUTION.

•  THE VOLUME OF DATA ON SOCIAL MEDIA QUICKLY RAISES RESOURCE NEEDS, PARTICULARLY WHEN DEALING WITH MULTI-MEDIA WITHIN SOCIAL MEDIA TO INCLUDE PHOTOGRAPHS, VIDEOS AND AUDIO IN ADDITION TO TEXT-BASED INFORMATION.

•  THE NUMBER OF SOCIAL MEDIA PLATFORMS AND SITES CONTINUES TO GROW WITH NO STANDARD FORMATS IN COMPARISON

TO TRADITIONAL ELECTRONIC COMMUNICATIONS SUCH AS EMAIL.

•  THE TIGHT INTEGRATION OF BOTH PERSONAL AND PROFESSIONAL COMMUNICATIONS ON MANY SOCIAL MEDIA PLATFORMS MIGHT RAISE PRIVACY AND OVER-RETENTION CONCERNS THROUGH THE INABILITY TO DISTINGUISH BETWEEN THE PERSONAL AND PROFESSIONAL PERSONAS OF AN EMPLOYEE.

•  SOCIAL MEDIA CAPABILITIES ARE EVOLVING RAPIDLY IN BOTH FORM AND VOLUME, STRAINING THE ABILITY TO CAPTURE ALL THE TYPES OF DATA WHICH MAY BE INVOLVED INCLUDING TEXT, GRAPHICAL, VIDEO AND AUDIO.


KEYS TO INCORPORATE AN INFORMATION RETENTION PROGRAM THAT INCLUDES SOCIAL NETWORKS

MITIGATION STRATEGY

•  EDUCATION: EMPLOYEES SHOULD BE MADE AWARE OF THE SCOPE AND INTENT OF THE POLICY AND HOW IT MAY AFFECT OR INTERACT WITH EXISTING CORPORATE POLICIES. SUCH EDUCATION SHOULD BE PERVASIVE GIVEN THAT SUCH A POLICY MOST LIKELY WOULD AFFECT ALL EMPLOYEES.

•  TRAINING: EMPLOYEES SHOULD BE PROVIDED RESOURCES TO HELP THEM MAKE APPROPRIATE DECISIONS WHEN INTERPRETING THE SOCIAL MEDIA AND RELATED POLICIES. TOOLS INCLUDING FREQUENTLY ASKED QUESTIONS (FAQS) AND SCENARIOS DESCRIBING TYPICAL SCENARIOS THAT AN EMPLOYEE MIGHT RELATE TO ARE USEFUL IN GAINING UNIFORM UNDERSTANDING AND COMPLIANCE WITH POLICY GOALS.

•  DATA RETENTION TOOLS: COMPANIES SHOULD ASSESS THEIR CURRENT RECORD RETENTION CAPABILITIES TO DETERMINE THEIR SUITABILITY IN ADDRESSING EMERGING REQUIREMENTS DUE TO SOCIAL MEDIA USE. SUCH USE SHOULD COVER BOTH THE COMPANY‘S USE OF SOCIAL MEDIA TO COMMUNICATE WITH AND PROVIDE SERVICES TO ITS CUSTOMERS AS WELL AS ANY COMMUNICATIONS BY ASSOCIATES SUBJECT TO REGULATORY RETENTION REQUIREMENTS.

FACEBOOK, TWITTER & GOOGLE PLUS: EDISCOVERY ESSENTIALS FOR ESI NOW BESIDES THE GENERAL PUBLIC THE GLOBAL ENTERPRISE HAS ACCEPTED AND ARE USING SOCIAL

MEDIA. THEY ARE INTERACTING AND CONNECTING WITH CUSTOMERS THROUGH FACEBOOK, TWITTER AND BLOGS. ONE THIRD OF THESE COMPANIES HAVE A BLOG. THIS IS HOW COMPANIES ARE DOING BUSINESS TODAY.

THIS ONLINE PRESENCE MANDATES LEGAL OBLIGATIONS TO CAPTURE AND SAVE THESE COMMUNICATIONS.

THINGS YOUR BUSINESS CLIENTS WHO USE SOCIAL MEDIA NEED TO DO TO:

1. UNDERSTAND THAT EDISCOVERY RULES APPLY TO SOCIAL MEDIA ACTIVITY.

2. UPDATE DOCUMENT RETENTION POLICIES TO INCLUDE SOCIAL MEDIA ACTIVITY

3.  IMPLEMENT TOOLS TO CAPTURE AND STORE SOCIAL MEDIA ACTIVITY

4. ALERT LEGAL COUNSEL RE SOCIAL MEDIA ACTIVITY WHEN LITIGATION IS ANTICIPATED; INCLUDE SOCIAL MEDIA IN YOUR DISCOVERY PLAN

SEE, HTTP://WWW.SOCIALMEDIALAWAPPLIED.COM/THE-LEGAL-FOUR-CORNERS-OF-SOCIAL-MEDIA-AND-E-DISCOVERY-FOR-

BUSINESSES/

DUTY OF PRESERVATION: SOCIAL NETWORKING DATA THAT CAN BE USED IN COURT

1.  UNDERSTAND THAT EDISCOVERY RULES APPLY TO SOCIAL MEDIA ACTIVITY.

THESE COMMUNICATIONS AND ONLINE ACTIVITY SHOULD BE THOUGHT OF AS AN EXTENSION OF “ELECTRONICALLY STORED INFORMATION” (“ESI”) AND THE DISCOVERY RULES THAT APPLY WHEN A COMPANY IS IN A LEGAL DISPUTE THAT WOULD TRIGGER A DUTY TO PRESERVE COMPANY EMAILS AND ELECTRONIC DOCUMENTS. WHEN THE FEDERAL RULES OF CIVIL PROCEDURE WERE AMENDED IN 2006 TO INCLUDE ESI, THE TERM WAS “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. IT DOES NOT MATTER HOW BRIEF THE STORAGE PERIOD, COURTS WILL TREAT THE INFORMATION AS DISCOVERABLE. ACCORDINGLY, EVEN STORAGE IN THE “CLOUD” OR ON A SOCIAL NETWORKING SITE WILL BE TREATED AS DISCOVERABLE ESI.

TO SUMMARIZE THE E-DISCOVERY RULES, THERE IS A DUTY TO PRESERVE RELEVANT OR POTENTIALLY RELEVANT INFORMATION ONCE LITIGATION IS PENDING OR REASONABLY ANTICIPATED AS LONG AS IT IS IN YOUR CUSTODY OR CONTROL. FOR THE PARTY FILING THE LEGAL ACTION, THE LITIGATION HOLD AND “DO NOT DESTROY” NOTICE SHOULD BE TRIGGERED BEFORE THE COMPLAINT IS FILED. “A DUTY TO PRESERVE EVIDENCE ARISES WHEN THERE IS KNOWLEDGE OF A POTENTIAL CLAIM.” MICRON TECH. V. RAMBUS, 255 F.R.D. 135 (D.DEL.2009), AFF’D IN PART, REV’D IN PART, 645 F.3D 1311 (FED. CIR. 2011).

A 2010 STUDY FOUND THAT COURTS ARE IMPOSING STRONG SANCTIONS AGAINST ATTORNEYS AND THEIR CLIENTS FOR FAILING TO COMPLY WITH THE E-DISCOVERY RULES. IN THIS STUDY OF 401 CASES BEFORE 2010 IN WHICH SANCTIONS WERE SOUGHT, SANCTIONS WERE AWARDED IN OVER HALF OF THEM. SOME OF THE SANCTIONS WERE ESPECIALLY SEVERE, AND INCLUDED CASE DISMISSALS, ADVERSE JURY INSTRUCTIONS AND LARGE MONETARY SANCTIONS. $5 MILLION SANCTIONS WERE ORDERED IN FIVE CASES, AND $1 MILLION OR MORE IN FOUR OTHERS. DEFENDANTS WERE SANCTIONED FOR E-DISCOVERY VIOLATIONS NEARLY THREE TIMES MORE OFTEN THAN PLAINTIFFS, AND THE NUMBER ONE REASON FOR IMPOSING SANCTIONS WAS FAILURE TO PRESERVE ELECTRONIC EVIDENCE. WHAT THIS MEANS IN PRACTICAL TERMS FOR COMPANIES IS SEVERAL THINGS.


2. UPDATE DOCUMENT RETENTION POLICIES TO INCLUDE SOCIAL MEDIA ACTIVITY.

COMPANIES SHOULD UPDATE THEIR DOCUMENT RETENTION POLICY TO INCLUDE SOCIAL MEDIA ACTIVITY. THE PROCEDURES THAT THE COMPANY IS FOLLOWING FOR E-MAILS IN TERMS OF STORAGE AND RETENTION PERIODS MAY BE A GOOD STARTING POINT. BY HAVING ESTABLISHED PROCESSES AND FOLLOWING THEM, ADVERSARIES IN LITIGATION WILL HAVE A HARD TIME ARGUING THAT THE COMPANY HAS DESTROYED RELEVANT AND POSSIBLY DAMAGING INFORMATION. THE STANDARD FOR PRESERVATION IS

“REASONABLENESS AND PROPORTIONALITY” SO MODELING IT AFTER THE PROCEDURE FOR RETENTION OF COMPANY EMAILS MAKES SENSE AND IS INTERNALLY CONSISTENT.

THE REVISIONS TO THE DOCUMENT RETENTION POLICY SHOULD ALSO TAKE INTO CONSIDERATION ANY INDUSTRY REGULATIONS,

SUCH AS STATE LAWS GOVERNING REAL ESTATE BROKERS, AND SEC AND FINRA RECORD KEEPING RULES FOR THE FINANCIAL SERVICES INDUSTRY. FOR EXAMPLE, FINRA ISSUED GUIDANCE IN JANUARY 2010 FOR BLOGS AND SOCIAL NETWORKING SITES, AND SET FORTH THE RECORD KEEPING RESPONSIBILITIES IN THE FINANCIAL BROKER-DEALER BUSINESS:

“EVERY FIRM THAT INTENDS TO COMMUNICATE, OR PERMIT ITS ASSOCIATED PERSONS TO COMMUNICATE, THROUGH SOCIAL MEDIA

SITES MUST FIRST ENSURE THAT IT CAN RETAIN RECORDS OF THOSE COMMUNICATIONS AS REQUIRED BY RULES 17A-3 AD 17A-4 UNDER THE SECURITIES EXCHANGE ACT OF 1934 AND NASD RULE 3110.”

THE COMPANY’S CURRENT DOCUMENT RETENTION POLICY IS A GOOD STARTING POINT, AND THE ASSISTANCE OF LEGAL COUNSEL IS ADVISABLE IN MAKING ANY REVISIONS TO INCLUDE SOCIAL MEDIA.


3. IMPLEMENT TOOLS TO CAPTURE AND STORE SOCIAL MEDIA ACTIVITY

•  IT IS BETTER TO START EARLY RATHER THAN LATER TO IDENTIFY A VENDOR THAT CAN CAPTURE AND STORE THE SOCIAL MEDIA ACTIVITY OF YOUR BUSINESS. IT IS NOT ENOUGH TO TRY AND GRAB SCREENSHOTS OF YOUR SOCIAL MEDIA PAGES.

•  FOR EXAMPLE, FACEBOOK OFFERS A “DOWNLOAD A COPY OF YOUR FACEBOOK DATA” THROUGH “ACCOUNT SETTINGS,” BUT THIS FEATURE WAS NOT DESIGNED WITH E-DISCOVERY RULES IN MIND.

•  THE DOWNLOADED DATA DOES NOT INCLUDE COMMENTS THAT HAVE BEEN MADE BY THE USER ON OTHER PEOPLE’S POSTS, AND REPORTEDLY DOES NOT INCLUDE ALL OF THE UNIQUE METADATA FIELDS THAT ARE USEFUL SUBSTANTIVE INFORMATION IN LITIGATION.

•  IN ADDITION, THE DOWNLOAD FEATURE WAS NOT DESIGNED TO CAPTURE POSTS THAT HAVE ALREADY BEEN DELETED BY THE FACEBOOK USER.



FACEBOOK OFFERS A “DOWNLOAD A COPY OF YOUR FACEBOOK DATA” THROUGH “ACCOUNT SETTINGS,” BUT THIS FEATURE WAS NOT DESIGNED WITH E-DISCOVERY RULES IN MIND. FOR EXAMPLE, THE DOWNLOADED DATA DOES NOT INCLUDE COMMENTS THAT HAVE BEEN MADE BY THE USER ON OTHER PEOPLE’S POSTS, AND REPORTEDLY DOES NOT INCLUDE ALL OF THE UNIQUE METADATA FIELDS THAT ARE USEFUL SUBSTANTIVE INFORMATION IN LITIGATION. IN ADDITION, THE DOWNLOAD FEATURE WAS NOT DESIGNED TO CAPTURE POSTS THAT HAVE ALREADY BEEN DELETED BY THE FACEBOOK USER.


4. ALERT LEGAL COUNSEL RE SOCIAL MEDIA ACTIVITY WHEN LITIGATION IS ANTICIPATED; INCLUDE SOCIAL MEDIA IN YOUR DISCOVERY PLAN

•  KNOWING THAT SOCIAL MEDIA ACTIVITY IS DISCOVERABLE MEANS THAT YOUR BUSINESS SHOULD GIVE THOUGHT TO HOW IT IS USING SOCIAL MEDIA AS SOON AS LITIGATION IS REASONABLY ANTICIPATED. FOR EXAMPLE, THERE MAY BE POSTS THAT ARE ROUTINE FOR THE BUSINESS ABOUT HOW WELL CERTAIN PRODUCT LINES ARE DOING THAT THE BUSINESS MAY WANT TO HOLD OFF ON POSTING IF THE BUSINESS IS ABOUT TO INITIATE A LEGAL ACTION IN WHICH IT IS SEEKING DAMAGES FROM A VENDOR

RELATING TO THE QUALITY OF THE PRODUCT DELIVERIES.

•  ALTERNATIVELY, IF YOUR BUSINESS MONITORS WHAT YOUR COMPETITORS ARE DOING ON SOCIAL MEDIA, THEN YOU CAN ALERT YOUR LITIGATION COUNSEL TO WHAT ACCOUNTS MAY HAVE PUBLIC POSTS WORTH COPYING THROUGH A SCREENSHOT IN

ORDER TO SUPPORT DISCOVERY REQUESTS SEEKING THE SOCIAL MEDIA ACTIVITY THAT IS NOT PUBLIC. MANY COURTS WILL ORDER SOCIAL MEDIA DISCOVERY IF THERE HAS BEEN SOME SHOWING THAT IT IS RELEVANT OR LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE, AND THE DISCOVERY REQUEST IS NOT OVERLY BROAD. COURTS ARE GENERALLY RELUCTANT TO ORDER DISCOVERY OF A PARTY’S PASSWORD, AND PROBABLY MORE SO WITH ALL OF THE NEGATIVE PRESS COVERAGE OF EMPLOYERS

ASKING JOB APPLICANTS FOR THEIR FACEBOOK PASSWORDS. NEVERTHELESS, THERE MAY BE CIRCUMSTANCES IN WHICH A PARTY MAY BE ORDERED TO PROVIDE THE PASSWORD ON THEIR SOCIAL MEDIA ACCOUNT. SEE, E.G., LARGENT V. REED, CASE NO. 2009-1823 (C.P. FRANKLIN NOV. 8, 2011).


SUMMARY •  BUSINESSES CANNOT AFFORD TO POSTPONE UPDATING THEIR DOCUMENT RETENTION

POLICIES, AND FINDING A GOOD SOLUTION FOR STORING THEIR SOCIAL MEDIA ACTIVITY.

•  COURTS ARE ORDERING SANCTIONS FOR E-DISCOVERY VIOLATIONS, AND BUSINESSES SUBJECT TO STATE AND FEDERAL REGULATIONS ARE BEING REQUIRED TO STORE MUCH OF THIS INFORMATION AS WELL.

•  IF A BUSINESS ANTICIPATES BEING INVOLVED IN LITIGATION, MAKE SURE YOUR LEGAL COUNSEL IS ASKING ABOUT YOUR SOCIAL MEDIA ACTIVITY, AND HOW THE POTENTIALLY RELEVANT OR DISCOVERABLE DATA IS BEING MAINTAINED.

•  DISCUSS THE SOCIAL MEDIA ACTIVITY OF YOUR BUSINESS AND THE OTHER PARTY SO SOCIAL MEDIA CAN BE INCORPORATED INTO YOUR LITIGATION STRATEGY.


KEYS TO MINIMIZE LIABILITY WITH CLIENT/ATTORNEY COMMUNICATION

•  THE CLASSIC DEFINITION OF THE ATTORNEY-CLIENT PRIVILEGE WAS ARTICULATED BY JOHN HENRY WIGMORE AS APPLYING "[W]HERE LEGAL ADVICE OF ANY KIND IS SOUGHT FROM A PROFESSIONAL LEGAL ADVISER IN HIS CAPACITY AS SUCH, THE COMMUNICATIONS RELATING TO THAT PURPOSE, MADE IN CONFIDENCE BY THE CLIENT, ARE AT HIS INSTANCE PERMANENTLY PROTECTED FROM DISCLOSURE BY HIMSELF OR BY THE LEGAL ADVISER, EXCEPT THE PROTECTION MAY BE WAIVED." WHILE WIGMORE'S FORMULATION SPECIFICALLY RELATES TO COMMUNICATIONS MADE BY THE CLIENT TO THE LAWYER, THE MODERN APPROACH IN MOST U.S. JURISDICTIONS PROTECTS COMMUNICATIONS FROM THE LAWYER AS WELL.

•  THE PURPOSE OF THE PRIVILEGE IS USUALLY STATED AS MEANT TO ENSURE FULL AND OPEN COMMUNICATION, CANDOR, AND CONFIDENTIALITY BETWEEN THE LAWYER AND THE CLIENT.

•  SOCIAL MEDIA PROVIDES THE POTENTIAL FOR BOTH CLIENT AND ATTORNEY TO WAIVE WORK-PRODUCT DOCTRINE PROTECTION AND ATTORNEY-CLIENT PRIVILEGE BY PUBLICLY DISCLOSING CONFIDENTIAL INFORMATION.

•  VOLUNTARY DISCLOSURE OF THE CONTENT OF A PRIVILEGED ATTORNEY COMMUNICATION CONSTITUTES WAIVER OF THE PRIVILEGE AS TO ALL OTHER SUCH COMMUNICATIONS ON THE SAME SUBJECT. GENERALLY, TO CONSTITUTE A WAIVER, THE DISCLOSURE MUST BE VOLUNTARY AND INCONSISTENT WITH THE CONFIDENTIAL NATURE OF THE ATTORNEY-CLIENT RELATIONSHIP AND MUST BE MADE TO “UNNECESSARY THIRD PARTIES.”

SEE, WWW.LEXISNEXIS.COM/COMMUNITY/LITIGATIONRESOURCECENTER/BLOGS/LITIGATIONBLOG/ARCHIVE/2011/02/23/WAIVER-OF-ATTORNEY-CLIENT-PRIVILEGE-OR-WORK-PRODUCT-DOCTRINE-THROUGH-SOCIAL-MEDIA.ASPX



IN MCMILLEN V. HUMMINGBIRD SPEEDWAY, INC., 2010 PA. DIST. & CNTY. DEC. LEXIS 270, THE PLAINTIFF CLAIMED SUBSTANTIAL INJURIES, INCLUDING POSSIBLE PERMANENT IMPAIRMENT, LOSS AND IMPAIRMENT OF GENERAL HEALTH, STRENGTH, AND VITALITY, AND INABILITY TO ENJOY CERTAIN PLEASURES OF LIFE, AFTER HE WAS REAR-ENDED DURING A COOL DOWN LAP FOLLOWING A JULY 7, 2007, STOCK CAR RACE. THE COURT GRANTED DEFENDANTS’ MOTION TO COMPEL DISCOVERY AND ORDERED THE PLAINTIFF TO PROVIDE HIS FACEBOOK AND MYSPACE USER NAMES AND PASSWORDS TO COUNSEL FOR DEFENDANTS AFTER DEFENDANTS REVIEWED THE PUBLIC PORTION OF PLAINTIFF’S FACEBOOK ACCOUNT AND DISCOVERED COMMENTS ABOUT HIS FISHING TRIP AND ATTENDANCE AT THE DAYTONA 500 RACE IN FLORIDA THE COMPLETE ACCESS AFFORDED TO THE FACEBOOK AND MYSPACE OPERATORS DEFEATS MCMILLEN'S PROPOSITION THAT HIS COMMUNICATIONS ARE CONFIDENTIAL. THE LAW DOES NOT EVEN PROTECT OTHERWISE PRIVILEGED COMMUNICATIONS MADE IN THE PRESENCE OF THIRD PARTIES. SEE E.G. IN RE CONDEMNATION BY CITY OF PHILADELPHIA, 981 A.2D 391, 397 (PA. COMMW. CT. 2009) ("CONFIDENTIALITY IS KEY TO THE [ATTORNEY-CLIENT] PRIVILEGE, AND THE PRESENCE OF A THIRD-PARTY DURING ATTORNEY-CLIENT COMMUNICATIONS WILL GENERALLY NEGATE THE PRIVILEGE"). WHEN A USER COMMUNICATES THROUGH FACEBOOK OR MYSPACE, HOWEVER, HE OR SHE UNDERSTANDS AND TACITLY SUBMITS TO THE POSSIBILITY THAT A THIRD-PARTY RECIPIENT, I.E., ONE OR MORE SITE OPERATORS, WILL ALSO BE RECEIVING HIS OR HER MESSAGES AND MAY FURTHER DISCLOSE THEM IF THE OPERATOR DEEMS DISCLOSURE TO BE APPROPRIATE. THAT FACT IS WHOLLY INCOMMENSURATE WITH A CLAIM OF CONFIDENTIALITY. ACCORDINGLY, MCMILLEN CANNOT SUCCESSFULLY MAINTAIN THAT THE ELEMENT OF CONFIDENTIALITY PROTECTS HIS FACEBOOK AND MYSPACE ACCOUNTS FROM DISCOVERY. … THE COURT REACHES THE SAME RESULT UPON CONSIDERING WIGMORE'S TEST FOR PRIVILEGE.



•  IN THE YOUTUBE “DANCING BABY” CASE, THE COURT HELD THAT THE PLAINTIFF WAIVED HER ATTORNEY-CLIENT PRIVILEGE BY VIRTUE OF POSTS ON HER BLOG, GMAIL CHAT, AND EMAILS DISCUSSING THOSE COMMUNICATIONS. LENZ V. UNIVERSAL MUSIC CORP., 2010 U.S. DIST. LEXIS 119271 (N.D. CAL. OCT. 22, 2010).

•  IN KINTERA, INC. V. CONVIO, INC., 219 F.R.D. 503 (S.D. CAL. 2003), KINTERA SUED ITS COMPETITOR CONVIO FOR COPYRIGHT INFRINGEMENT AND MISAPPROPRIATION OF TRADE SECRETS AFTER CONVIO ALLEGEDLY OBTAINED A CD ROM BELONGING TO KINTERA CONTAINING PROPRIETARY AND CONFIDENTIAL COMPUTER PROGRAM CODES RELEVANT TO BOTH COMPANIES’ INTERNET-BASED MARKETING AND FUNDRAISING SERVICES. FOR COMMERCIAL REASONS, KINTERA DISCUSSED THE ALLEGED MISAPPROPRIATION OF TRADE SECRETS ON ITS COMPANY WEBSITE AND NOTED THAT IT HAD OBTAINED SIGNED AFFIDAVITS UNDER PENALTY OF PERJURY FROM CONVIO EMPLOYEES. DURING DISCOVERY, KINTERA TRIED TO WITHHOLD THE AFFIDAVITS FROM CONVIO PURSUANT TO THE WORK-PRODUCT DOCTRINE, BUT BASED ON THE DISCLOSURES OF THE AFFIDAVITS ON KINTERA’S WEBSITE, THE COURT REJECTED KINTERA’S OBJECTIONS AND ORDERED THAT KINTERA PRODUCE THE WITNESS STATEMENTS CONTAINED IN THE AFFIDAVITS.



IN STERN V. O’QUINN, 253 F.R.D. 663 (S.D. FLA. 2008), HOWARD K. STERN, THE ATTORNEY AND FRIEND OF ANNA NICOLE SMITH, FILED A DEFAMATION SUIT AGAINST A FIRM AFTER THE FIRM ALLEGEDLY MADE DEFAMATORY STATEMENTS ABOUT MR. STERN TO THE MEDIA WHILE REPRESENTING MS. SMITH’S MOTHER, VIRGIE ARTHUR. CONCURRENTLY, A BOOK ENTITLED BLOND AMBITION: THE UNTOLD STORY BEHIND ANNA NICOLE SMITH’S DEATH WAS PUBLISHED AND ACCUSED MR. STERN OF NUMEROUS CRIMINAL ACTS. AN INVESTIGATOR FOR THE BOOK DISCUSSED THE RESULTS OF HER INVESTIGATION WITH THE AUTHOR AND ALSO MADE NUMEROUS STATEMENTS IN ON-LINE CHAT ROOMS REGARDING HER INVESTIGATIVE PROGRESS, INCLUDING STRATEGY, TO HAVE MR. STERN PROSECUTED, AS WELL AS CONVERSATIONS SHE HAD WITH MS. ARTHUR. DURING DISCOVERY, MR. STERN SOUGHT DOCUMENTS FROM THE FIRM THAT SUPPORTED THE STATEMENTS MADE BY THE FIRM TO THE MEDIA. THE DISCOVERY REQUESTS SOUGHT TO DETERMINE THE FIRM’S EFFORTS IN INVESTIGATING WHETHER THE STATEMENTS IT MADE ABOUT MR. STERN WERE TRUE OR FALSE, INCLUDING THE STATEMENTS MADE BY THE INVESTIGATOR FOR THE BLOND AMBITION BOOK. THE FIRM CLAIMED THAT THE INVESTIGATION FOR THE BOOK WAS PROTECTED BY THE WORK-PRODUCT DOCTRINE, BUT THE COURT REJECTED THE ARGUMENT BECAUSE THE CONTENTS OF THE INVESTIGATION WERE PUBLISHED IN CHAT ROOMS AND TO THE AUTHOR OF THE BOOK. ACCORDINGLY, THE COURT REQUIRED THE PRODUCTION OF ALL POSTINGS IN THE CHAT ROOMS AND ALL DOCUMENTS AND STATEMENTS PROVIDED TO THE AUTHOR OF THE BOOK.

EDISCOVERY AND SOCIAL MEDIA ETHICS , SOCIAL NETWORKING AND EDISCOVERY

SOCIAL MEDIA HAS ALSO AFFECTED LITIGATION PRACTICE AND PRESENT SOME ETHICAL DILEMMAS. ONE DILEMMA IS WHETHER AN ATTORNEY

CAN ACCESS AN ADVERSE PARTY’S SOCIAL NETWORKING WEBSITE TO OBTAIN INFORMATION ABOUT THE PARTY, INCLUDING IMPEACHMENT MATERIAL.

IN PROFESSIONAL ETHICS OPINION 843, ISSUED ON SEPTEMBER 10, 2010, THE NEW YORK STATE BAR ASSOCIATION'S COMMITTEE ON PROFESSIONAL ETHICS CONCLUDED THAT AN ATTORNEY REPRESENTING A PARTY IN PENDING LITIGATION MAY ACCESS THE PUBLIC PAGES

OF ANOTHER PARTY'S SOCIAL NETWORKING WEBSITE TO OBTAIN PUBLICLY AVAILABLE INFORMATION ABOUT THAT PARTY. THE COMMITTEE OBSERVED THAT SOME SOCIAL NETWORKING WEBSITES AND/OR USERS DO NOT REQUIRE PRE-APPROVAL OR CONSENT TO ACCESS MEMBER PROFILES, AND THUS THE PROFILES ARE ACCESSIBLE TO ALL MEMBERS. WHILE THE COMMITTEE FOUND THAT SUCH

INFORMATION ON SOCIAL NETWORKING WEBSITES IS AKIN TO PUBLICLY ACCESSIBLE ONLINE OR PRINT MEDIA, IT ALSO MADE CLEAR THAT THERE ARE LIMITATIONS TO THE ATTORNEY’S CONDUCT ON SOCIAL NETWORKING SITES:

AN ATTORNEY CANNOT “FRIEND” OR OTHERWISE MAKE CONTACT WITH THE PARTY. SUCH CONDUCT WOULD FALL WITHIN THE PURVIEW OF RULE 4.2 OF THE NEW YORK RULES OF PROFESSIONAL CONDUCT (“RULES”), WHICH PROHIBITS A LAWYER FROM COMMUNICATING WITH

THE REPRESENTED PARTY ABOUT THE SUBJECT OF THE REPRESENTATION ABSENT PRIOR CONSENT FROM THE REPRESENTED PARTY’S LAWYER.

AN ATTORNEY CANNOT EMPLOY A THIRD PARTY TO “FRIEND” THE PARTY. SUCH CONDUCT WOULD FALL WITHIN THE PURVIEW OF RULE 8.4(C),

WHICH PROHIBITS A LAWYER FROM ENGAGING IN CONDUCT INVOLVING “DISHONESTY, FRAUD, DECEIT OR MISPRESENTATION;”RULE 4.1, WHICH PROHIBITS LAWYERS FROM MAKING FALSE STATEMENTS OF FACT OR LAW TO A THIRD PERSON; AND RULE 5.3(B)(1), WHICH HOLDS AN ATTORNEY RESPONSIBLE FOR THE CONDUCT OF EMPLOYED NON-ATTORNEYS WHO VIOLATED THE RULES.

SEE ,

HTTP://WWW.EDISCOVERYLAWALERT.COM/2010/10/ARTICLES/LITIGATION-PREPAREDNESS-STRATE/ACCESSING-AN-ADVERSARYS-PUBLIC-SOCIAL-NETWORKING-INFORMATION-NY-PROFESSIONAL-ETHICS-OPINION-843/

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