social media and e-discovery

Jeremy W. Richter | www.jeremywrichter.com

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Social Media and E-DiscoveryJeremy W. Richter

www.jeremywrichter.com


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Over 3 Billion current users on the internet

Actually on-line right now!!!

Social Media and E-Discovery


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Approximately 40% of the world’s population has an internet

connection.

In 1995, it was less than 1%.



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80% of the US populationhas internet connection

50% of those have a Facebook Account



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65% of Alabama residentshave internet connection

67% of those have a Facebook account



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• 12 million business sites• 4.5 million entertainment sites• 3.1 million financial sites• 2 million sports sites



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A. Social Media Archiving and Compliance The following was on a plaintiff attorney’s website as a warning to clients:

While some injuries leave workers capable of shuttling themselves to the gym or physical therapy, serious disabilities restrict everyday life. Broadcasting your physical activity and how you are spending your time may undermine the credibility of your workers’ compensation claim, and may not properly convey just how disabling your condition may be. While it may be unintentional and seemingly harmless, it’s also human nature to exaggerate the truth on social media websites. For instance, having your social media status listed as “just finished a marathon” when in reality you are stuck on the couch in pain after walking down your driveway to your mailbox. Insurers can and will manipulate social media to argue or prove inconsistency, exaggeration, and fraud.


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B. Top Pitfalls to Avoid

“Friending”• Getting access to Facebook, Instagram, etc.

by requesting from user (friending)• Savvy investigation or violation of rules?– Courts say you must disclose nature of friend

request • But if the other person asks you, that is fine• Same with “Tagging” – Gives date, time, location of videos and photos


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No contact with represented person• Would include Facebook posts• “Likes” on Instagram• Comments on a blog, post, article,

etc.


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Fraudulently obtaining information• Faking “friend” status• Using false identity to obtain access• Having others do your dirty work


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Privileged Information• By posting on internet, for whatever

purpose, information loses privileged (and other protected) status from discovery.–No different than any other

dissemination of information outside the context of attorney-client relationship


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Spoliation• Destruction of evidence with

anticipation or actual litigation – Deletion of accounts– “Cleaning” accounts– Setting privacy limitations that did not

exist prior to litigation– Advice of attorney to delete/clean– Applies to Email as well


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation• Courts are struggling with technology and trying

to keep up.– Knowledge and generational gaps

• Relevancy is big issue– What difference does picture of a party have

to do with whether they were involved in an accident?

• Trustworthiness of information– Fake/hacked accounts– Altered information/photos– No control over the internet


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation• Very little precedent in Alabama regarding

discoverability of social media content in civil cases.

• Social media content is generally not privileged or protected by privacy rights.

• The requesting party is not granted “a generalized right to rummage at will through information that [the responding party] has limited from public view.”


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation• The threshold for determining the limits of

discoverability of social media content is similar to those any other discoverable information.

• The fact that the material being requested in social media content rather than traditional discovery materials should not change the court’s analysis as pertains to discoverability, but rather the court should apply “basic discovery principles in a novel context.”


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRequest production of social media context in Rule 33 and 34 discovery requests:• Rule 33 Interrogatory: Describe any and all social media

accounts or sites that you have an account with or access to and state your username on said accounts, including but not limited to any information on Facebook, Twitter, Google+, MySpace, Instagram, Pinterest, Flickr, YouTube, LinkedIn or any other blogs or other websites that you currently use or have used in the five years prior to the subject collision, including on the date of the collision. NOTE: You are hereby instructed not to delete, erase, or otherwise destroy the content contained on any social media page(s), blog, or other website that contains information, posts, photographs, or other content produced, posted, or otherwise authored by you, throughout the course of this litigation.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRequest production of social media context in Rule 33 and 34 discovery requests:• Rule 34 Request for Production: Produce any

and all archived posts, information, tweets, photographs, and/or any other material authored or posted by you on any of the above-identified social media or websites used or frequented by you, from the five years preceding the subject collision to the present.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRegarding the method of production of social media: • It is within the Court's discretion to require that

counsel for the producing party (as opposed to the party himself) review any social media content for relevance and to thereafter produce any relevant material.

• Counsel for the producing party is the sole assessor of relevancy.

• Courts have held that the requesting party is to rely on the producing party in its determination of whether there is any relevant information to be produced, rather than allowing the requesting party to obtain the opponent’s username and password or via issuing a subpoena to the to the social media company.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRegarding the method of production of social media: • Affirmative duties to which the producing party

must adhere: (1) the producing party should review all electronic communications made or affirmatively acknowledged by him on any social networking website during the relevant period ("including all status updates, messages sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications") and (2) produce to the requesting party a copy of all electronic communications belonging or attributable to him as a result of his affirmative actions that discuss or relate to the relevant conduct or state of being.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRegarding the method of production of social media: • Alternatively, the producing party can give to the

requesting party unfettered access to the social networking sites along with a summary of the potentially relevant and discoverable information.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRegarding discoverability of social media content: • The requesting party has the burden of

showing that the requested material is relevant.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRegarding discoverability of social media content: • Courts seek to protect parties from

allowing “fishing expeditions” whereby requesting parties may attempt “to cast too wide a net for any information that might be relevant and discoverable.”


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationRegarding discoverability of social media content: • Courts are within their purview to limit

the scope of requested social media content where the requesting party hasn’t laid sufficient predicate to show that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence, or where the court finds that “the burden imposed on a class of plaintiffs to produce such an overly broad swath of documents, while technologically feasible, is far outweighed by the remote relevance of the information.”


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation3rd Party Subpoenas to Social Networks • Often occurs with Facebook – subpoena issued

for all information contained (past and present) on party’s page/account.

• Most such subpoenas have been quashed, but at least one court has allowed discovery if the information “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims. The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, just as relevant matter from a personal diary is discoverable.”


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationApproaches to authenticating and admitting social media posts: • The party that would seek to admit it should do

one or more of the following: (1) inquire of the purported creator of the content whether he created the profile and the subject post, (2) search the internet browser history and hard drive of the purported creator's computer in order to determine what computer was used to originate the subject profile and posting, or (3) obtain the social media content directly from the social networking company so as to establish the appropriate creator and link the posting in question to the individual who initiated it.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationApproaches to authenticating and admitting social media posts: • The party seeking admission of the evidence

could (1) offer direct testimony from a witness with personal knowledge of the creation of the content; (2) compare the evidence he is seeking to admit with other authenticated evidence; or (3) offer circumstantial evidence, such as photographs or contextual reference. The standard then for determining whether the evidence was properly authenticated is whether a jury could reasonably find the proffered evidence to be authentic.


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationWhat information is available online about parties?– Other injuries– Relationships– Litigation history– Personal opinions– Activities, interests, and hobbies– Political, religions, and social affiliations


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationWhat information is available online about witnesses?• Finding them– Service

• Pre-deposition/testimony information – Social interaction in community– Attitude toward client– Interests that may sway

testimony/opinion– Employment history


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C. Proper Data Mining, Gathering and Admitting, Preservation, and SpoliationWhat information is available online about experts?• Publications• Opinions – Professional– Personal

• Background– Testimony– Employment


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter3. YouTube

Download all Google products with Google Takeout (including YouTube, Google+, Gmail, Picasa, etc.)


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter3. YouTube4. Email as Evidence


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter3. YouTube4. Email as Evidence5. Electronic Medical Records


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter3. YouTube4. Email as Evidence5. Electronic Medical Records6. Web Pages

• February 24, 2001

• September 14, 2015


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter3. YouTube4. Email as Evidence5. Electronic Medical Records6. Web Pages7. Photo/Video


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter3. YouTube4. Email as Evidence5. Electronic Medical Records6. Web Pages7. Video8. Voicemail


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C. Proper Data Mining, Gathering and Admitting, Preservation, and Spoliation1. Facebook2. Twitter3. YouTube4. Email as Evidence5. Electronic Medical Records6. Web Pages7. Video8. Voicemail9. Text Messages


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D. Citing Online Content Properly

• The Bluebook• Chicago Manual

of Style


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E. Preservation of Metadata

What is Metadata?• A document’s properties lists its metadata. Some

examples of metadata in a Microsoft Word document are your name/initials, your organization’s name, file type, document versions, file location, create date, last modified date, editing time, number of pages and total size of the document. This information stays with the document and is used by your computer and other software as a reference guide.

• Metadata preservation is the ability to save and export the contents and metadata of a document or piece of data.

• Metadata is equivalent to a car title - from the title of your car you can find out the make, model, owner, year.


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E. Preservation of Metadata

Metadata and the FRCP

“While the term metadata is not explicitly included in the Federal Rules of Civil Procedure, metadata is clearly included within the definition of ‘electronically stored information,’ and therefore must be preserved and produced in the context of civil litigation. This information is critical to searching, organizing, and authenticating volumes of digital information during review and production. Based on an established body of e-discovery caselaw, failure to handle metadata in the same manner of the text of a document or email will result in sanctions.”

Michele LangeDirector of Thought Leadership

Kroll Ontrack


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F. Tried and True Websites

1. Primary Authority Law– Westlaw– Lexis– Free Legal Resources

2. Public Information Resources


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G. Turning Email into Evidence

• Authenticate or Ask for a Stipulation – Email can be authenticated by witnesses, signature blocks, and/or email addresses.

• Email is hearsay, unless subject to an exception


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H. E-Discovery Goes Mobile

Tried and True E-Discovery Apps– Scan & Share Documents, Photographs, Whiteboards,

etc.: Evernote Scannable, Scanbot, Office Lens– Remote Desktop/Laptop Access Apps: Chrome

Desktop, LogMeIn– Cloud Services: Dropbox, Sharefile, Google Docs– Large Email Attachments: Hightail– Remote Network Control: Symantec eDiscovery

eXchange– Secure Email and Document Apps – Good for

Enterprise, Good Pro, Good Work, Good Access, Good Connect