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CLE Slides 2011 03 18   Social Media   Row Angeli Slides
 

CLE Slides 2011 03 18 Social Media Row Angeli Slides

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Social Media & E-Discovery Presentation

Social Media & E-Discovery Presentation

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CLE Slides 2011 03 18   Social Media   Row Angeli Slides CLE Slides 2011 03 18 Social Media Row Angeli Slides Presentation Transcript

  • Dealing With Third Parties: Social Networks and Cloud Computing David H. Angeli Angeli Law Group LLC Seth H. Row Parsons Farnell & Grein LLP Oregon Law Institute March 18, 2011
  • Why Social Media & the Cloud Matters
  • Why Social Media & Cloud Matters
    • Fastest growing form of communication
    • Even less formal than email – more of a “bar scene” than “water cooler”
    • Social media = more fragile than email
    • The ‘cloud’ = preservation/access/proliferation
  • Stored Communications Act
    • Prohibits “Electronic Communication Service” from divulging “content” of messages without consent – even with a subpoena
    • Crispin v . Christian Audigier Inc ., 2010 U.S. Dist. Lexis 52832 (C.D. Cal. May 26, 2010) – broad interpretation
    • Take away: webmail provider cannot provide emails/FB cannot provide messages
  • ECPA & Stored Communications Act
    • Evans v. Evans , 168 N.C. App. 358, 610 S.E.2d 264 (2005)
      • Husband produced email sent by wife to lover
      • Electronic Communications Privacy Act (ECPA) prevents disclosure of intercepted email
      • Must occur “contemporaneously” with transmission
      • Here, email stored on hard drive of family computer - not intercepted contemporaneously
  • SCA & Social Media Groups
    • Pietrylo v. Hillstone Restaurant Group , Docket No. 2:06-cv-05754 (D.N.J. 2008)
      • Restaurant employees created MySpace group
      • Password protected/labeled private (“EULA”)
      • Owners got password, looked, fired ‘yees
      • Court: violation of SCA – owners may have compelled password from employee
      • BE CAREFUL DURING INVESTIGATION!
  • How Do You Get What You Need
    • Increasingly parties using non-court-ordered remedies to get what they need – using ordinary discovery tools
    • Subpoena – w/o consent will only work to get basic user information - Jessup-Morgan v. America Online, Inc . 20 F. Supp.2d 1105 (Ed. Mich. 1998)
    • If the customer refuses to consent, can go to court to force giving consent to the ISP/SM provider, or force self-collection - D.M. v. J.E.M ., 873 N.Y.S. 2d 447 (N.Y. Fam. Ct. 2009)
  • Compelling consent…
    • Romano v. Steelcase, Inc. , 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)
      • Personal injury
      • Public information on SM site did not match injuries
      • Court found no real privacy expectation
      • Compelled consent for active and deleted data from Facebook and MySpace
  • Data Preservation In the Cloud
    • Starts with the contract – or TOS
    • Complicated by redundancy
    • Effective litigation hold depends on thorough, updated, comprehensive data map – extensive input by business units
    • Preservation will usually require collection from the cloud
  • Chatter allows drag-and-drop of files into its cloud system – unlike Twitter – creating an additional repository of potentially non-duplicative ESI.
  • Producing ESI From the Cloud/ Social Media
    • HTML format preserves almost all attributes of social media
    • FB self-collection tool matches what a subpoena will produce
    • Metadata often is not preserved when cloud information is collected because metadata tied into the cloud system – cannot be preserved, often
  • Upload date/time
  • Using Social Media Evidence At Trial
    • Griffin v. State , 192 Md. App. 518 (Md. App. 2010)
    • Commonwealth v. Williams, 456 Mass. 857 (Mass. 2010)
  • Ethics & Social Media Investigation
    • Philadelphia Bar Association Opinion 2009-02
    • New York State Bar Committee on Professional Ethics Opinion 843
  • Questions?