Rim on the social side


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  • there is new exploitation of these media for communication that will ultimately give rise to discoverableinformation and the subject matter of litigation
  • defendants hired an expert to conduct a keyword search of plaintiff’s computer network, servers, and related storage devices. Per the court's order, plaintiff was to produce the results of the examination. There were more than 50 search terms, and many were also run in French. Moreover, “the search was not limited to targeted document custodians or relevant time periods. Indeed, the search was not even limited to active files.” The search was instead run “across all data on the computer system” including unallocated space. Unsurprisingly, the results were voluminous, returning 64,382,929 hits in unallocated space alone which represented approximately 95 million pages of data.Following a telephonic hearing, the Magistrate Judge entered an order permitting plaintiff to withhold data found in the unallocated space and allowing defendants to seek reimbursement for the costs incurred in extracting and searching that data. Among other things, the order was based on findings that the burden of the review would outweigh any potential benefit and that the likelihood of finding relevant, admissible evidence was “minimal.”
  • in a recent Indiana decision, the court was incredulous that the plaintiff failed to “Google” themissing defendant (Joe Groce) as part of his due diligence process. The court stated, “We do note that thereis no evidence in this case of a public records or Internet search for Groce…to find him. In fact, we [the judge]discovered, upon entering ‘Joe Groce Indiana’ into the Google™ search engine, an address for Groce thatdiffered from either address used in this case, as well as an apparent obituary for Groce’s mother that listednumerous surviving relatives who might have known his whereabouts.” The court upheld the defendant’sclaim of insufficient service of process and affirmed the dismissal of the case. Munster v. Groce, 829 N.E.2d 52(Ind. App. 2005) available at http://caselaw.lp.findlaw.com/data2/indianastatecases/app/06080501mpb.pdf.
  • the court noted that the investigative technique of merely calling directory assistanceto find a missing defendant
  • The case arose out of a chain-reaction automobile vs. motorcycle accident from which the plaintiffs allegedly suffered serious and permanent physical and mental injuries. However, the Facebook public timeline page of one of the plaintiffs featured content that contradicted her claims of serious injury, including several photographs showing her enjoying life with her family and a status update about going to the gym. Based upon this information, Defendant moved to compel disclosure of Plaintiff’s Facebook username and password. The ruling determined that no social media privacy privilege exists: “No court has recognized such a privilege, and neither will we.” Information on Facebook is shared with third parties and, thus, there is no reasonable expectation of privacy in such information. As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”
  • 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.” The court cited 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.” See, e.g. United States v. Siddiqui, 235 F.3d1318, 1322-23 (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, 36-38 (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).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.
  • Storing records, electronically, and retention policies…
  • The crux of the lawsuit is that Kravitz was paid as a product reviewer and video blogger for PhoneDog from April 2006 through October 2010, and that this position included posting tweets on a Twitter account called @PhoneDog_Noah. After Kravitz left PhoneDog, he changed the name of the account to @noahkravitz, and kept its followers instead of relinquishing the account and its followers over to PhoneDog as was requested of him. On November 28, 2011, the complaint survived a motion to dismiss filed by Kravitz with the magistrate judge allowing the claims for misappropriation of trade secrets and conversion to stand, and giving PhoneDog leave to file amended claims for intentional interference with prospective economic advantage and negligent interference with prospective economic advantage. On the tortious interference claims, the court held that PhoneDog failed to allege how Kravitz continuing to use the Twitter account in his own name disrupted the purported relationships between PhoneDog and the Twitter users, or how it resulted in economic harm – two essential elements for these claims.
  • Rim on the social side

    1. 1. RIM on the Social Side Natalie Alesi www.legalerswelcome.com nataliebethalesi@gmail.com
    2. 2. Definition: Social media includes web- based and mobile technologies used to turn communication into interactive dialogue. …Social media is media for social interaction as a super-set beyond social communication. Enabled by ubiquitously accessible and scalable communication techniques, social media has substantially changed the way organizations, communities, and individuals communicate.
    3. 3. FACT: Social networking is the most popular online activity worldwide. ~Nielsen #
    4. 4. Founded 2003 150 million members NYSE Symbol “LNKD” 47.6 million unique monthly visitors Founded 2006 845 million members IPO filed Feb. 1, 2012 138.9 million unique monthly visitors Founded 2006 300 million members 300 million tweets/day 1.6 billion search queries/day Founded 2011 100 million members In one day, G+ became most popular free iPhone app
    5. 5. http://youtu.be/Nwwq3l39lqk Technology Will Kill
    6. 6. iPhone 2007 Apple App Store 2008 iPad 2010
    7. 7. ABA Model Rules 1.1 requires lawyers to be competent in representation of their clients. Comment 6: Lawyers “should keep abreast of changes in the law and it’s practice”
    8. 8. Courts & Cases
    9. 9. I-Med Pharma v. Biomatrix (D.N.J 2011) ediscovery case highlighting importance of knowing your clients computer system
    10. 10. Munster v. Groce (Ind. App 2005) lawyers duty to Google as part of due diligence
    11. 11. Dubios v. Butler (Fl. App 2005) Lawyers duty to use Internet resources as part of due diligence, not to use methods that have gone “the way of the horse and buggy and the eight track stereo.”
    12. 12. Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) Pennsylvania court recently ruled that information posted by a party on their personal Facebook page is discoverable and ordered the plaintiff to provide their user name and password to enable the production of the information.
    13. 13. State of Connecticut vs. Eleck, 2011 WL 3278663 (Conn.App. 2011) highlights the importance of employing best practices technology to collect, preserve and produce social media evidence.
    14. 14. NEW YORK STATE BAR ASSOCIATION Committee on Professional Ethics Opinion # 843 (09/10/2010) Q: May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network? A: A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not "friend" the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction). http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&TEMPLA TE=/CM/ContentDisplay.cfm&CONTENTID=43208
    15. 15. 689 State and Federal Cases Involved social media evidence Myspace/Facebook = Criminal Twitter/LinkedIn = Corporate Trade, secret theft, copyright, trademark
    16. 16. What about a Social Media Policy?
    17. 17. Sample Social Media PolicyTemplate http://www.jaffepr.com/about-us/industry-insight/white-papers/social-media-policy-template Phone Dog vs. Noah Kravitz
    18. 18. Upcoming Webinar Social Media eDiscovery Case Study & Applicable Best Practices March 28th 2012 1 – 2 pm ET http://www.d4discovery.com/2012/03/webinar-social-media-ediscovery-case- study-applicable-best-practices/
    19. 19. Actionable Items  Understand social media privacy  Research software for preservation and archiving of social media information  Understand your firms social media policy / be on the social media policy committee  Create accounts on social media sites so you understand  Know where information is stored/devices where information is stored in your firm with your attorneys  Educate attorneys to think about where client information may be stored (in the cloud, servers, devices, etc.)  Adopt standards for how to use electronically stored information, including social media.  Know Recent Social Media Cases (http://x1discovery.com/social_media_cases.html)
    20. 20. Twitter @ediscoverygroup @nextpointmike @exterro @nextpoint @IEDiscovery @LitSuppGuru @eDiscJournal @ComplexD @GlobalEDDGroup @bowtielaw @nextpointlab @d4discovery LinkedIn Groups ARMA International RIM Professionals eDiscovery Women in eDiscovery Men in dDiscovery eDiscovery Networking Group eDiscovery Plain and Simple LegalIT e-Disc Electronic Discovery Professionals Enterprise eDiscovery in the Cloud The Electronic Discovery Reference Model Blogs of Interest blog.x1discovery.com/ www.digitalreefinc.com/blog/ www.d4discovery.com/ e-discoveryserviceblog/ www.mofo.com/sociallyaware/ www.sociallyawareblog.com/ RIM and eDiscovery Social Resources
    21. 21. Sources for Presentation • http://www.natlawreview.com/article/ediscovery-social-media • http://x1discovery.com/video_webinar_duty_to_address.html • http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&TEMP LATE=/CM/ContentDisplay.cfm&CONTENTID=43208 • http://blog.x1discovery.com/2011/12/27/pennsylvania-courts-excellent- whitepaper-on-social-media-discovery/ • http://blog.x1discovery.com/2012/02/08/a-real-world-social-media- discovery-case-study-from-the-trenches/ • http://blog.x1discovery.com/2011/11/09/674-published-cases-involving- social-media-evidence/ • http://bowtielaw.wordpress.com/2012/02/22/huge-hole-in-ediscovery- process/ • http://bowtielaw.wordpress.com/2010/05/12/convicted-by-text-message- overcoming-authentication-hearsay-objections • http://www.digitalreefinc.com/blog/bid/82157/Recap-of-Digital-Reef-s- Social-Media-White-Paper/
    22. 22. Law Firms and Social Media FACT: Washington Post 20 percent of law firms have a full-time social media specialist on staff, and about 40 percent said blogging and social networking initiatives have helped the firm land new work.
    23. 23. Q & A
    24. 24. Direct email: nataliebethalesi@gmail.com Twitter @legalerswelcome LinkedIn linkedin.com/in/nataliealesi Facebook facebook.com/legalerswelcome Google+ gplus.to/nataliehuha My Blog: www.legalerswelcome.com