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Social Media and Discovery

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Social Media and
Discovery
Kirby Drake
Klemchuk LLP
Copyright 2019 KBD

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What Is E-Discovery?
 Electronic aspect of identifying, collecting and producing
electronically stored information (ESI) ...

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Social Media E-Discovery Sources
 Facebook, Instagram, Pinterest, LinkedIn, Twitter;
messaging applications including gen...

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Social Media and Discovery

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This presentation provides an overview of electronic discovery basics and then dives into relevant considerations in requesting and receiving social media discovery.

This presentation provides an overview of electronic discovery basics and then dives into relevant considerations in requesting and receiving social media discovery.

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Social Media and Discovery

  1. 1. Social Media and Discovery Kirby Drake Klemchuk LLP Copyright 2019 KBD
  2. 2. What Is E-Discovery?  Electronic aspect of identifying, collecting and producing electronically stored information (ESI) in lawsuit  Existing in a medium that can only be read by using computers, such as cache memory, hard drives, DVDs/CDs  Can include emails, text messages, documents, presentations, databases, voicemail, audio and video files, social media postings, and websites  Found on a wide variety of devices such as desktop and laptop computers, network servers, tablets, and phones Copyright 2019 KBD
  3. 3. Social Media E-Discovery Sources  Facebook, Instagram, Pinterest, LinkedIn, Twitter; messaging applications including general purpose (e.g., WhatsApp) and auto-deleting (e.g. Wickr) varieties  Each social media account for each individual user can contain hundreds or thousands of pages of materials in a mishmash of formats  Also have metadata fields for each file  IP address logs (user activity) may be available too Copyright 2019 KBD
  4. 4. How to Obtain Social Media E-Discovery  Print out material or capture a screen image of it  Use self-service export tools provided by social media platform instead  Use specialized forensic collection software Copyright 2019 KBD
  5. 5. How to Obtain Social Media E-Discovery  Print out material or capture a screen image of it  PROS - fast, simple, and cheap  CONS - will not have captured native file or any associated metadata; unless other party concedes authenticity and accuracy of print or image copy, may have a hard time getting such a copy authenticated and admitted as evidence Copyright 2019 KBD
  6. 6. How to Obtain Social Media E-Discovery  Use self-service export tools provided by the social media platform instead  Facebook’s dates back to 2010 (“Download Your Information”); Twitter’s dates back to 2012 (“Twitter Archive)”  Fast, simple, and cheap, but can only be done by account holder (or by someone with their credentials and consent)  Length and format can make the export challenging to sort through and separate once obtained  Export may not provide all available metadata and timestamps or linked content embedded in the materials from other sites (e.g., YouTube videos) Copyright 2019 KBD
  7. 7. How to Obtain Social Media E-Discovery  Use of specialized forensic collection software  Can capture files and materials, along with metadata and any linked content, and provide options for searching, sorting, and filtering  Most commonly used tool of this type is X1 Social Discovery  Carries additional costs (either for tool or for services from provider with tool), but can be essential for cases involving large quantities of social media materials, questions best resolved through metadata, or potential for disputes over authenticity and admissibility of social media materials themselves Copyright 2019 KBD
  8. 8. Discoverability of Social Media  Generally discoverable under the same conditions and in the same ways as any other type of evidence (FRCP 26(b))  Standard applies to tweets, Facebook posts, or Instagram pictures the same way it does to more traditional sources like Office documents or emails  If it’s relevant, it’s discoverable  FRE 401 – relevant if materials requested have any tendency to make any fact of consequence to any claim or defense of any party any more or less probable Copyright 2019 KBD
  9. 9. Discoverability – Social Media (continued)  Traditional requests for production  In camera review – depends on court  Password requests – generally disfavored; not commonly used  Subpoenas to service providers –Stored Communications Act (“SCA”) establishes certain privacy protections for our electronic materials stored with third party service provers, from both government intrusion and third party access Copyright 2019 KBD
  10. 10. Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010)  Ruling on private messages  Ruling on Facebook wall and MySpace comments  Distinction between private messages and Facebook wall/MySpace comments Copyright 2019 KBD
  11. 11. Hawkins v. College of Charleston, (D.S.C., Nov. 15, 2013)  Facebook account deleted  Question of whether litigation foreseeable at time of deletion  Sanctions Copyright 2019 KBD
  12. 12. EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010)  Decision about proper scope of relevance  Privacy concerns raised Copyright 2019 KBD
  13. 13. The Katiroll Co., Inc. v. Kati Roll & Platters Inc. (D.N.J. 2011)  Defendant changed Facebook profile picture from one that included dress that trademark dispute was over to one that did not  Plaintiff sought spoliation sanctions over that change  Addresses spoliation, intent, and remedial measures Copyright 2019 KBD
  14. 14. Gatto v. United Airlines (D.N.J. Mar. 25, 2013)  Plaintiff produced Facebook password to defendants to access, review, and print some agreed-upon materials  When they attempted to access the account, however, plaintiff received automatic notification from Facebook about an access attempt from new, unauthorized IP address and – allegedly fearing hacking – deactivated his account  Later attempted to restore it, but after two weeks of deactivation, Facebook had already deleted the account materials (per its standard policy) making them unrecoverable Copyright 2019 KBD
  15. 15. Crowe v. Marquette Transportation Co., No. 14-1130 (E.D. La. Jan. 20, 2015)  Plaintiff deactivated his Facebook account days after receiving a discovery request to produce materials from it, and then, he claimed he did not “presently have a Facebook account”  Discussion of whether spoliation sanctions should be entered Copyright 2019 KBD
  16. 16. Social Media Ethical Concerns  When and with whom is it okay for an attorney to communicate via social media?  Can an attorney research parties or jurors’ public social media materials?  Can an attorney submit a friend request in an attempt to view non-public materials?  What information about him- or herself must an attorney disclose?  Does an automated notification that an attorney viewed a social media profile count as a communication from that attorney to that individual?Copyright 2019 KBD
  17. 17. Social Media Takeaways  Self-help collection options are limited, but okay in some situations. Custom tools available for when more complete collection or more robust post-collection options needed.  Social media evidence discoverable when relevant. Overbroad requests disfavored and likely to be limited by judge, and discovery of passwords for unlimited access strongly disfavored and likely to be disallowed. Subpoenas to obtain materials directly from social media service providers are unlikely to work.  If relevant, needs to be preserved, and clients need to be advised of that fact explicitly. If it’s lost, even unintentionally, sanctions may follow. Copyright 2019 KBD
  18. 18. Kirby B. Drake Klemchuk LLP kirby.drake@klemchuk.com 214-367-6000 Copyright 2019 KBD

Editor's Notes

  • 56% of online adults use two or more of these five services.
  • Print out material or capture a screen image of it
    PROS - fast, simple, and cheap
    CONS - will not have captured native file or any associated metadata; unless other party concedes authenticity and accuracy of print or image copy, may have a hard time getting such a copy authenticated and admitted as evidence
    Use self-service export tools provided by the social media platform instead
    Facebook’s dates back to 2010 and is called “Download Your Information”; Twitter’s dates back to 2012 and is called “Twitter Archive.”
    Fast, simple, and cheap, but can only be done by the account holder (or by someone with their credentials and consent). 
    Length and format can make the export challenging to sort through and separate once obtained.
    Export may not provide all available metadata and timestamps, and it won’t have any of the linked content embedded in the materials from other sites (e.g., YouTube videos).
    Use of specialized forensic collection software
    Such tools capture the files and materials, along with metadata and any linked content, and provide options for searching, sorting, and filtering. 
    The most commonly used tool of this type is X1 Social Discovery.
    Carries additional costs (either for such a tool or for services from a provider with such a tool), but can be essential for cases involving large quantities of social media materials, questions best resolved through metadata, or the potential for disputes over the authenticity and admissibility of the social media materials themselves.

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