A presentation on social media investigations within the legal community including issues on ethics, authentication, and case law updates.

1. Social Media in Legal
Investigations
Ian Tausig, CSMIE
Brian J. Kramer, CFLS
California Association of Licensed Investigators, 2016 Annual Conference
June 11th, 2016 – Rancho Mirage, California

2. Agenda
•Working with counsel to identify issues in the case
•Identifying likely sources of evidence
•Investigative techniques
•Social Media Forensics
•Legal and Evidentiary Issues
•Case Study: Michelle Ghent v Terrence Howard

3. About
Ian A. Tausig, CSMIE
•Ian Tausig is a licensed private investigator and
the President of Tausig & Associates, a full-
service professional investigation agency which
specializes in providing litigation support and
legal investigation services to law firms and
insurance carriers throughout California. Ian is a
former law enforcement professional,
establishing his agency in 2013. He is a board
certified Social Media Intelligence Expert, as
well as a subject matter expert and court-
testified expert witness in the field of social
media investigative techniques, and the
authenticity of social media evidence.

4. About
Brian J. Kramer, CFLS
•Brian Kramer is certified by the California
Board of Legal Specialization as a family law
specialist, has been recognized as a Super
Lawyer in the practice of family law, and he is
widely regarded to be one of the top divorce
attorneys among his class of peers in Los
Angeles. In recognition of some of the
outstanding results he has secured for his
clients, Brian’s family law practice has been the
subject of both local and national news
coverage. Most recently and notably, Brian
successfully worked to vacate a large spousal
support judgment against academy award
nominee, actor Terrence Howard.

5. Introduction
•100 million hours of video watched per day
•1 billion users on Groups
•80 million users on Facebook Lite
•500 million users on Events
•123 million events created in 2015
•50 million small and medium sized business on Facebook Business Pages
Why social media should be reviewed in every case

6. Image From http://www.technewstoday.com/
Introduction
Why social media should be reviewed in every case
January 24th, 2016 – 1 Billion individual logins on Facebook

7. Working with Counsel
Why use social media evidence?
•Evidence of state of mind
•Evidence of communication
•Evidence of time and place
•Evidence of actions
•Rebuttal and Impeachment Evidence

8. Identifying Sources of Evidence
1. Facebook
1.1 billion unique users per month
2. YouTube
1 billion unique users per month
3. Twitter
310 million unique users per month
4. LinkedIn
255 million unique users per month
5. Pinterest
255 million unique users per month
6. Google+
120 million unique users per month
7. Tumblr
110 million unique users per month
8. Instagram
100 million unique users per month
9. Reddit
85 million unique users per month
6. VK
80 million unique users per month

9. Social Media Forensics
• Forensic Preservation and Chain of Custody
• Just because it’s on the internet, the same basic principals for collecting and
storing evidentiary material applies.
• Best practices for forensically preserving social media evidence include:
• Use of forensic software for preservation. Forensic software will create an
audit trail and preserve relevant metadata behind preserved content.
• X1 Social Discovery for social media content
• WebPreserver for content outside of X1’s support social media platforms,
or websites.
• Bottom line: Screen shots, printing to PDF, or printing a paper copy is not
a forensic preservation and can potentially lead to significant evidentiary
challenges and authentication issues.

10. Authentication
• Personal knowledge - "Yes, I know that is his/her Facebook page."
• Distinctive Appearance - appearance, content, substance, internal
patterns, specific indicia
• Deposition or interrogatories - "Do you maintain the Facebook
account in this name?"
• Expert witness testimony - "In my opinion, this Facebook page is
maintained by him/her“
• Basic Subscriber Information - Obtained from subpoena
Experts construct the integrity of a document. Utilize as many of these as
possible to authenticate social media evidence:

11. Legal Aspects of Social Media
• Statutes and Case Law
• The Stored Communications Act (SCA)
• Formal Discovery: Special Interrogatories, Demands for
Production, and Subpoenas
Case Law, Ethics, Preservation and Authentication

12. California Evidence Code
•California Evidence Code 1400
•Authentication of a writing means (a) the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the evidence claims it is or (b) the
establishment of such facts by any other means provided by law.
•California Evidence Code 1552(a)
•A printed representation of computer information or a computer program is presumed to
be an accurate representation of the computer information or computer program that it
purports to represent. This presumption is a presumption affecting the burden of
producing evidence. If a party to an action introduces evidence that a printed
representation of computer information or computer program is inaccurate or unreliable,
the party introducing the printed representation into evidence has the burden of proving,
by a preponderance of evidence, that the printed representation is an accurate
representation of the existence and content of the computer information or computer
program that it purports to represent.
•California Evidence Code 352
•The court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.

13. California Case Law
•People v. Beckley (2010) 185 Cal.App.4th 509
•Evidence from Social Media sources must be properly
authenticated.
•Also cites People v. Doggett (1948) 83 Cal.App.2d 405 that “no
expert testified that the photo was not a composite or fake”
•“Such expert testimony is even more critical today to prevent the
admission of manipulated images. . . . [W]ith the advent of
computer software programs such as Adobe Photoshop it does
not always take skill, experience, or even cognizance to alter a
digital”

14. California Case Law
•People v. Valdez (2011) 201 Cal.App.4th 1429
•Trial court admitted MySpace “printouts,” upheld on appeal
•Provided guidance on use of “specific indicia” to authenticate social media evidence
•MySpace page icon identifying the owner of the page displayed a photograph of Defendant’s face.
•Defendant’s Myspace page included greetings addressed to him by name and by relation
•Defendant’s sister left a "big brother" salutation on his MySpace page, accompanied by a user icon
consisting of her photograph
•Greeting from Defendant’s sister was one of many posts by friends and by the page owner that included
personal details
•Page owner's stated interests, including an interest in gangs generally and specifically, matched what the
police otherwise knew of Defendant’s interests from their field contacts with him
•“The writings on the page and the photograph corroborated each other by showing a pervading interest in
gang matters, rather than an anomalous gesture.”
•“Other key factors include that the evidence strongly suggested the page was Defendant’s personal
site…and that the page was password protected for posting and deleting content, which tended to
suggest Defendant, as the owner of the page, controlled the posted material.”

15. Stored Communications Act (SCA)
• SCA creates Fourth Amendment-like privacy protection for email
and other digital communications (content) stored on the
internet.
• Limits the ability of “electronic communications holders” to reveal
content information to nongovernment entities.
18 U.S.C. §2701, et. seq
• Social media and email providers are defined as “electronic
communication services” (ECS) within SCA.

16. Legal Requests
• Special Interrogatories
• Demands for Production (DFP)
• Subpoenas
• Alternate methods
Special Interrogatories,
Demands for Production,
and Subpoenas

17. Subpoenas
• Response by a social media platform to a criminal or civil subpoena, requesting
content is PROHIBITED by SCA.
• Basic subscriber information is not protected by SCA and may be obtained via
subpoena to the platform.
• Basic subscriber information is:
• Account holder’s name
• Account holder’s address
• Local and long distance telephone connection records, or records of session times
and durations
• Length of service (including start date) and types of service utilized;
• Telephone or instrument number or other subscriber number or identity, including
any temporarily assigned network address [which would include IP addresses]
• Means and source of payment for such service (including any credit card or bank
account number)

18. Subpoenas (Continued)
• Use specific, narrow verbiage in subpoenas
• Identify specific user name’s and/or account numbers in the request
• Party must be given notice prior to service of the subpoena
• For obtaining content – SCA does NOT apply to individual parties, just the platforms.

19. Demand for Production
CCP§2031.010
• Specific, narrow verbiage
• Avoid fishing expeditions - “Any/All,“ “Complete account”
• Specific date range
• In regards to messages between parties, specify the other party
• In regards to pictures, specify pictures of who
• If already available, utilize the username/number of the account

20. Legal Requests
Alternate Methods
• In any formal discovery, SCA becomes a strongly controlling factor. However – SCA only controls content held
by the provider, not by the party.
• Alternative: Requesting the court compel the party to consent under SCA; or compel the party to provide their
login (username / password) information
• “If the court can compel Juror Number One to produce the information, it can likewise compel Juror Number
One to consent to the disclosure by Facebook. The SCA has no bearing on this issue.” -Juror Number One v.
Superior Court, 206 Cal. App. 4th 854, 142 Cal. Rptr. 3d 151 (Ct. App. 2012).
• A court may compel a party consent to disclosure of communications under 18 U.S.C. §2702(b)(3) - Negro v.
Superior Court, 230 Cal. App. 4th 879, 179 Cal. Rptr. 3d 215 (Ct. App. 2014).
• Federal court requires a party to respond to interrogatories “requesting her to list all user names and
passwords for every social media site she utilizes” - Howell v. Buckeye Ranch, Inc., No. 2:11–cv–1014, 2012 WL
5265170 (S.D. Ohio Oct. 1, 2012)
• The courts have widely disagreed on the reasonableness of these approaches, awarding sanctions against
requesting parties, as they should be considered secondary or last-resort.

21. Ethics in Social Media Investigations
Agent of Counsel
• Things you can do that will can your attorney / law firm clients in trouble with the
State Bar:
• Attorney / Law Firm clients have professional responsibility to supervise the work of
their “employees or agents” – Professional Rules of Conduct 3-110
• Communicate directly or indirectly about the subject of the representation with a
party (ex-parte communication) – Professional Rules of Conduct 2-100
• Attorney sends Facebook friend requests to two high-ranking company
employees of the opposing party in an action.
• SDCBA opined “[CalBar]…rules bar an attorney from making an ex parte friend
request of a represented party.” – SDCBA Legal Ethics Opinion 2011-2

22. Private Profiles & Ethics
Expectation of Privacy
• Is there a reasonable expectation of privacy on social media?
• Courts are generally saying NO.
• “…material posted on a “private” Facebook page, that is accessible to a selected
group of recipients but not available for viewing by the general public, is
generally not privileged, nor is it protected by common law or civil law notions of
privacy. Nevertheless, the Defendant does not have a generalized right to
rummage at will through information that Plaintiff has limited from public view”
Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388
• Juror Number One argues forced disclosure of his Facebook posts violates his
privacy rights. However, Juror Number One has not shown he has any expectation
of privacy in the posts -Juror Number One v. Superior Court, 206 Cal. App. 4th
854, 142 Cal. Rptr. 3d 151 (Ct. App. 2012).

23. Case Study
Michelle Ghent v Terrence Howard
• Parties signed a marital settlement agreement (MSA) after private mediation, the
MSA was then entered as a judgment.
• Terrence filed request for order to set aside the judgment, Michelle engaged in
“conduct amounting to criminal extortion or blackmail.”
Video credit: AP via YouTube

24. Case Study
Michelle Ghent v Terrence Howard
• Highly publicized 4 day trial began August 13, 2015; overseen by widely respected
LA County Superior Court Family Law Judge, Hon. Thomas Trent Lewis
• First witness, Terrence’s sister Yvonne Howard. Testified that Michelle had made
threats against Terrence to reveal person information about him.
• Second witness, Charles McBride, was Terrence’s business manager and
accountant. McBride testified he wired “hush money” to Michelle.
• Third witness, Ian Tausig, reviewed and provided expert testimony on social media
posts and private messages made to Terrence and his (now) ex-wife Mira.

25. Case Study
Michelle Ghent v Terrence Howard
• Review of 491 pages of social media postings and related
evidence
• 61 pages of screenshots of Instagram posts and direct
messages
• 152 pages of documents pertaining to a search warrant (and the
SW return) relating to Instagram accounts.
• 86 pages of text messages exchanged between Terrence and
Michelle
• 192 pages of deposition transcript, from Michelle’s deposition

26. Case Study
Michelle Ghent v Terrence Howard
• Search warrant was issued 1/15/2015 in
response to a criminal investigation
(stalking)
• Search warrant identified Michelle’s
known Instagram account, as well as 3
others which had sent threatening
messages to Terrence.
• All 3 suspect accounts were deactivated
at the time of warrant service.
• Search warrant author failed to identify or
include a 4th, still active suspect account,
as well as a still active Twitter account.

27. Case Study
Michelle Ghent v Terrence Howard
• 61 pages of Instagram posts and direct
messages reviewed
• Several posts and messages displayed specific
indicia with one another, providing a reasonable
belief and conclusion they were being authored
by the same individual.
• Several posts and messages also included
private, personal information not available in the
public domain – and only known to an
extremely small group of individuals – including
Michelle.

28. Case Study
Michelle Ghent v Terrence Howard
• 86 pages of text messages exchanged
between Terrence and Michelle
• Threats made of “pictures will all be up”
and “Start googling”

29. Case Study
Michelle Ghent v Terrence Howard
• 192 pages of Michelle’s deposition
transcript
• Michelle denied generally and
specifically operating any of the
accounts which were sending
harassing and threatening messages

30. Case Study
Michelle Ghent v Terrence Howard
• On social media evidence:
• 5 hours of direct testimony
• 2 hours of cross-examination
• “Rebuttal expert” had experience as
a network engineer. Not applicable
here. He also identified his most
recent employment at Robbins
Brothers. (Yes, the engagement ring
experts.)
• Trial preparation was CRITICAL

31. Case Study
Michelle Ghent v Terrence Howard
• Judge Lewis found the testimony and
evidence regarding social media
postings to be “credible” and further
found “that Michelle was making
Instagram and Twitter posts about
Terrence”
• Ultimately, the court found Terrence
“had no choice but to sign the
agreement” and the Agreement as
well as the judgment were set aside.

32. Case Study
Michelle Ghent v Terrence Howard

33. Contacts
Ian A. Tausig, CSMIE
Tausig & Associates
1000 Paseo Camarillo, Suite 227
Camarillo, CA 93010
Phone: 805-293-1409
Email: ITausig@TausigPI.com
http://www.TausigPI.com
Brian J. Kramer, CFLS
Brian J. Kramer, PC
12100 Wilshire Blvd, Suite 800
Los Angeles, CA 90025
Phone: 424-228-4133
Email: BKramer@bjkpc.com
http://www.bjkpc.com