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Analyzing the Impact and Influence of Social Networking on E-Discovery Strategy

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Steve Green, Director of Strategic Planning & Development for Hudson Legal presents on the impacts (or lack thereof) of social media on e-discovery at the Marcus Evans 2nd Social Media Legal Risk and …

Steve Green, Director of Strategic Planning & Development for Hudson Legal presents on the impacts (or lack thereof) of social media on e-discovery at the Marcus Evans 2nd Social Media Legal Risk and Strategy Conference, Jul 19-21, 2011

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  • 1. Analyzing the Impact & Influence of Social Networking on E-Discovery Strategy Steven W. Green, Esq. Director of Strategic Planning & Development Marcus Evans 2nd Social Media Legal Risk & Strategy July 2011 – San Francisco
  • 2. Q&A
    • Q: How great is the impact of social media on e-discovery?
    • A: Not that great.
    • Q: Should I be worried?
    • A: Not really.
    • Q: Then why is there so much buzz about this topic?
    • A: It’s gone viral! Welcome to the age of social media.
  • 3. The Deloitte Survey “Social media a nightmare for e-discovery” 1
      • Survey summary: “[M]ore than half of respondents’ companies are either unprepared…or only somewhat prepared…to handle e-discovery requests relating to social media.” 2
      • Actual results weren’t so bad:
        • How prepared is your company to address e-discovery requests as it relates to business-related communications via social media web technologies (i.e., social media sites, blogs)?
    • Title of article in ZDNet Australia published July 5, 2010. http://bit.ly/nSA4sw
    • Source: E-Discovery: Mitigating risk through better communication. Conducted Sept-Oct 2009. http://bit.ly/r9k5Ad
  • 4. Social Media E-Discovery Caselaw Typically personal, individual-oriented litigation
    • Denied
    • Muniz v. UPS Attorney fees for discrimination suit
    • Crispin v. Christian Audiger Copyright, Breach of Contract
    • Piccolo v. Paterson Personal Injury
    • Barclay v. Pawlak (denying sanctions) Employment Discrimination
    • Burdine v. Covidien Fair Labor Standards Act – class certification
    • Granted
    • Zimmerman v. Weis Markets Workplace Injury
    • McMillen v. Hummingbird Speedway Workplace injury (stock car racing)
    • Romano v. Steelcase Personal Injury
    • Bass v. Miss Porter’s School Bullying
    • EEOC v. Simply Storage Workplace Harassment
  • 5. E-Discovery and Corporate Risk
    • Bet-the-company, organization-oriented situations
      • Antitrust Litigation and Second Requests
      • Bankruptcy
      • Class Action Litigation
      • Commercial Litigation
      • Financial and Securities Litigation
      • Intellectual Property Litigation
      • Multi-Party Litigation and Joint Defense
      • Real Estate Litigation
      • Regulatory Investigations, FCPA and White Collar Defense
  • 6.
    • Requests for social media content in the caselaw are almost always:
      • To refute an individual’s claim about their physical condition or state of mind, or
      • To identify an anonymous party where their content forms the basis for the cause of action (i.e., defamation, copyright infringement).
      • Notable exception: Crispin v. Christian Audiger
    • Corporation is always the requesting party, seeking information from an individual
    Assessing Social Media E-Discovery Risks to Corporations
  • 7. The Present Social Media Environment
    • Are e-discovery considerations moot for corporations?
      • Most social networking services are oriented toward the individual
      • Corporate social media content is usually for marketing purposes, and intentionally public
      • Most issues are the same as in any discovery from cloud storage, few unique to social media
      • Enterprise 2.0 social/collaborative platforms are simply another discoverable shared resource
  • 8.
    • F.R.C.P. 26(b)(2)(C)(i) – Discovery is limited when it “can be obtained from some other source that is more convenient, less burdensome, or less expensive”
    • Barclay v. Pawlak – Failure to produce public blog entries is not significant enough to merit discovery sanctions
    • Net effect of widespread social media use may actually be a diminished need for document discovery! Examples:
      • PalTalk v. Sony – Plaintiff used LinkedIn to gather information about potential witnesses and sources of documentary evidence where defendants failed to provide meaningful discovery
      • B.M. v. D.M. – Wife’s public social media postings used to support Husband’s claims that she was capable of working
    Public Content and E-Discovery
  • 9.
    • 18 U.S.C. §§2701 et seq.
    • Prohibits electronic communication and remote computing (including storage) providers from divulging contents of communication or data
    • Enacted in 1986, prior to the World Wide Web and widespread use of the internet
    • Crispin v. Christian Audiger :
      • SCA applies to social media sites / providers
      • Prevents third-party discovery through direct subpoenas
    The Stored Communications Act
  • 10.
    • EEOC v. Simply Storage :
      • “ SNS content is not shielded from discovery simply because it is ‘locked’ or ‘private’.”
      • “ SNS [Social Networking Site] content must be produced when it is relevant to a claim or defense in the case.”
      • Discovery limited to material relevant to the case
    • See also:
      • Bass v. Miss Porter’s : Court provided entire Facebook record of plaintiff to requesting defendant where unproduced portions contained some relevant info, suggested presence of additional relevant material
      • Burdine v. Covidien : Defendant denied discovery of plaintiff’s social networking sites as irrelevant to the issue of class certification
      • Muniz v. UPS : Law firm’s listserv emails and social media postings not relevant in determining legal fees
    Relevance / Discoverability
  • 11. Social Media Discovery Requests
    • Requests
    • SCA: Make requests of content owners, not site owners
    • Obtain public content prior to serving requests, can aid in justifying requests ( Romano v. Steelcase ) 1
    • Be prepared to justify how request targets relevant information
    • Objections
    • Quash third-party subpoenas of social networking services ( Crispin v. Christian Audiger )
    • Object under Rule 26(b) to requests for publicly-available content
    • Object to broad requests on relevance grounds ( Piccolo ; Muniz ; EEOC )
    1. “[I]t is reasonable to infer from the limited postings on Plaintiff's public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.”
  • 12. The E-Discovery Process How does the e-discovery process differ when social media is involved?
  • 13.
    • Duty to preserve applies to social media, no special preservation order needed
      • Young v. Facebook : Court denied plaintiff’s motion for an order to preserve social media evidence 1 absent showing that “extraordinary preservation requirements” were necessary
      • “ Duty to preserve evidence that [civil litigants] know is relevant or reasonably could lead to the discovery of admissible evidence...backed by the court’s power to impose sanctions for the destruction of such evidence, is sufficient in most cases to secure the preservation of relevant evidence.” (emphasis added)
    Information Management, Identification and Preservation 1. Note that plaintiff suffered from mental illness and was representing herself. The evidence at issue, referred to as the "DEAR LORD death page" implied that President Obama may be next after a string of celebrity deaths. Facebook was apparently considering removal of the page. See plaintiff's motion here: http://bit.ly/mXLK72
  • 14.
    • Difficult to control retention, preservation, and changes made to social content
    • New social media archiving tools evolving for e-discovery purposes:
      • Smarsh
      • Hanzo Archives
    Information Management, Identification and Preservation (cont’d)
  • 15.
    • Collection
      • Similar collection issues to cloud computing
      • Facebook’s “Download Your Information” feature
    • Processing
      • File Types: New platforms mean new types of files to process
      • Metadata: New fields may be necessary to understand the import of collected social media content
      • Twitter should be easy – All text, metadata is in the tweet!
    Collection and Processing
  • 16.
    • Few vendors will be familiar with processing data of this type
    • Most social media content is currently text-based, sometimes with embedded images or audiovisual content
    • Key is to prepare it for review, production, and presentation in a way that preserves its original context and significance
    Collection and Processing (cont’d)
  • 17. Review
    • Should preserve key features of native environment
      • How should social content be reviewed?
        • Should preserve key features of native environment
      • Document relationships in “traditional” electronic documents
        • Family (email / attachment)
        • Similarity (duplicate, near-duplicate)
        • Thread (email conversation)
  • 18. Review (cont’d)
    • Should preserve key features of native environment
      • Social document relationships
        • More conversation types
        • Wall posts, Re-tweets, Location data, Groups
        • Lots of new info to tell the whole story
      • “ Activity Stream” model would probably be most helpful in re-producing timeline, but review tools aren’t currently set up to organize data this way
  • 19.
    • Latest e-discovery tools have some social mapping analysis based on email metadata
    • May be useful in analyzing social media content as well
    • Example: Catelas
    Analysis
  • 20.
    • How do you produce social content as it is kept in the ordinary course of business?
    • Native environment is difficult to reproduce, TIFFs may lack info
    • Some parties ordered to turn over login information!
      • Zimmerman v. Weis Markets
      • McMillen v. Hummingbird Speedway
    Production and Presentation
  • 21.
    • Court given access or snapshot of entire social media profile:
      • Bass v. Miss Porter’s : Court produced entire thing to defendants
      • Zimmerman : Court rejected this approach as placing an unfair burden on court
      • Offenback v. L.M. Bowman : Court ordered partial production, said plaintiff could have reviewed and produced relevant info itself
    Production and Presentation (cont’d)
  • 22.
    • Today: Social media content primarily used for socializing and marketing, questionable e-discovery relevance
    • Google+ differentiators:
      • Walled-off private areas for social
      • Deep web integration
    • Near future:
      • Internal business communications take place in environments where enterprise has limited control
      • Corporate social content intertwined with personal social media content
      • Web becomes less distinguishable from its users
    Google Plus – The Future?
  • 23.
    • USA v. Jeffries :
      • Motion for temporary release from custody so accused could login to Facebook to collect info refuting government’s arguments based on Facebook data
      • Release denied because wife could still login to account to get needed info
    • Shymatta v. Papillon :
      • Defendant’s maintenance of a non-commercial cell phone review blog insufficient to subject him to general personal jurisdiction in any forum
    Bonus: Other Social Media Caselaw
  • 24.
    • Lenz v. Universal Music :
      • Plaintiff waived privilege by sharing details of attorney-client communications and attorney work product on her blog and in Gmail chats
    • Tarazi v. Oshry :
      • Third-party anonymous blog poster permitted to intervene to prevent identity from being discovered
    Bonus: Other Social Media Caselaw (cont’d)
  • 25. LAST SLIDE Find me to continue the conversation about social media & e-discovery Email [email_address] Hudson Blog http://www.hudsonlegalblog.com Twitter @reviewninja Google+ +SteveGreen
  • 26.
    • B.M. v. D.M. , 2011 NY Slip Op 50570U; 31 Misc. 3d 1211A; 2011 N.Y. Misc. LEXIS 1534 (N.Y. Sup. Ct. 2011)
    • Barclay v. Pawlak , 2010 U.S. Dist. LEXIS 33724 (D. Conn. Apr. 6, 2010)
    • Bass v. Miss Porter's Sch. , 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009)
    • Burdine v. Covidien, Inc. , 2011 U.S. Dist. LEXIS 14648 (E.D. Tenn. Feb. 11, 2011)
    • Crispin v. Christian Audigier, Inc. , 717 F. Supp. 2d 965 (C.D. Cal. 2010)
    • EEOC v. Simply Storage Mgmt. , 270 F.R.D. 430 (S.D. Ind. 2010)
    • Lenz v. Universal Music Corp. , 2010 U.S. Dist. LEXIS 119271 (N.D. Cal. Oct. 22, 2010); confirmed in Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 125874 (N.D. Cal. Nov. 17, 2010)
    • McMillen v. Hummingbird Speedway, Inc. , 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. County Ct. 2010)
    • Muniz v. UPS , 2011 U.S. Dist. LEXIS 11219 (N.D. Cal. Jan. 28, 2011)
    • Offenback v. L.M. Bowman, Inc. , 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011)
    • Paltalk Holdings, Inc. v. Sony Computer Entm't Am., Inc. , 2010 U.S. Dist. LEXIS 92229 (E.D. Tex. Sept. 3, 2010)
    • Piccolo v. Paterson , 2011 Pa. Dist. & Cnty. Dec. LEXIS 45 (Pa. County Ct. 2011)
    • Romano v Steelcase Inc. , 2010 NY Slip Op 20388, 30 Misc. 3d 426, 907 N.Y.S.2d 650, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct. 2010)
    • Shymatta v. Papillon , 2011 U.S. Dist. LEXIS 43619 (D. Idaho Apr. 21, 2011)
    • Tarazi v. Oshry , 2011 U.S. Dist. LEXIS 37955 (S.D. Ohio Apr. 4, 2011)
    • United States v. Jeffries , 2011 U.S. Dist. LEXIS 5597 (E.D. Tenn. Jan. 20, 2011)
    • Young v. Facebook, Inc. , 2010 U.S. Dist. LEXIS 98261 (N.D. Cal. Sept. 13, 2010)
    • Zimmerman v. Weis Markets, Inc. , No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011)
    Appendix A: Citation List
  • 27.
    • 1524948 Alberta Ltd. v. John Doe 1-50 , 2010 U.S. Dist. LEXIS 100482 (D. Utah Sept. 22, 2010) (third-party subpoenas of Facebook and Twitter allowed to identify defendants in expedited discovery prior to 26(f) conference)
    • Barnes v. CUS Nashville, LLC , 2010 U.S. Dist. LEXIS 52263 (M.D. Tenn. May 27, 2010) (Discovery granted of Facebook profile but not through subpoena due to SCA)
    • Bower v. Mirvat El-Nady Bower , 2011 U.S. Dist. LEXIS 36677 (D. Mass. Apr. 5, 2011) (SCA prevents subpoena of email)
    • Flagg v. City of Detroit , 252 F.R.D. 346 (E.D. Mich. 2008) ( in camera review of text messages for relevance prior to objections or privilege claims)
    • Park West Galleries, Inc. v. Hochman , 2010 U.S. Dist. LEXIS 12488 ( E.D. Mich. Feb. 12, 2010) (Summary judgment denied where LinkedIn profile created issue of fact whether defamatory writings were from an employee of party)
    • Zoosk Inc. v. Doe , 2010 U.S. Dist. LEXIS 134292 (N.D. Cal. Dec. 9, 2010) (Expedited discovery to identify defendants)
    • Zynga Game Network Inc. v. Doe , 2010 U.S. Dist. LEXIS 9390 (N.D. Cal. Jan. 21, 2010) (Social gaming company allowed limited subpoena of third-parties to identify defendants)
    Appendix B: Add’l Citations (not mentioned in slides)