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Analyzing the Impact & Influence of Social Networking on E-Discovery Strategy

Steven W. Green, Esq.Director of Strategic Planning & Development

Marcus Evans 2nd Social Media Legal Risk & StrategyJuly 2011 – San Francisco

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Q&A

Q: How great is the impact of social media on e-discovery?A: Not that great.

Q: Should I be worried?A: Not really.

Q: Then why is there so much buzz about this topic?A: It’s gone viral! Welcome to the age of social media.

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The Deloitte Survey“Social media a nightmare for e-discovery”1

Survey summary: “[M]ore than half of respondents’ companies are either unprepared…or only somewhat prepared…to handle e-discovery requests relating to social media.”2

Actual results weren’t so bad:

How prepared is your company to address e-discovery requests as it relates to business-related communications via social media web technologies (i.e., social media sites, blogs)?

1. Title of article in ZDNet Australia published July 5, 2010. http://bit.ly/nSA4sw2. Source: E-Discovery: Mitigating risk through better communication. Conducted

Sept-Oct 2009. http://bit.ly/r9k5Ad

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Social Media E-Discovery Caselaw

Typically personal, individual-oriented litigation

Denied

Muniz v. UPSAttorney fees for discrimination suit

Crispin v. Christian AudigerCopyright, Breach of Contract

Piccolo v. PatersonPersonal Injury

Barclay v. Pawlak (denying sanctions)Employment Discrimination

Burdine v. CovidienFair Labor Standards Act – class certification

Granted

Zimmerman v. Weis MarketsWorkplace Injury

McMillen v. Hummingbird SpeedwayWorkplace injury (stock car racing)

Romano v. SteelcasePersonal Injury

Bass v. Miss Porter’sSchool Bullying

EEOC v. Simply StorageWorkplace Harassment

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E-Discovery and Corporate Risk

Bet-the-company, organization-oriented situations

Antitrust Litigation and Second Requests

Bankruptcy

Class Action Litigation

Commercial Litigation

Financial and Securities Litigation

Intellectual Property Litigation

Multi-Party Litigation and Joint Defense

Real Estate Litigation

Regulatory Investigations, FCPA and White Collar Defense

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Requests for social media content in the caselaw are almost always:

1. To refute an individual’s claim about their physical condition or state of mind, or

2. To identify an anonymous party where their content forms the basis for the cause of action (i.e., defamation, copyright infringement).

Notable exception: Crispin v. Christian Audiger

Corporation is always the requesting party, seeking information from an individual

Assessing Social Media E-Discovery Risks to Corporations

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The Present Social Media Environment

Are e-discovery considerations moot for corporations?

Most social networking services are oriented toward the individual

Corporate social media content is usually for marketing purposes, and intentionally public

Most issues are the same as in any discovery from cloud storage, few unique to social media

Enterprise 2.0 social/collaborative platforms are simply another discoverable shared resource

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F.R.C.P. 26(b)(2)(C)(i) – Discovery is limited when it “can be obtained from some other source that is more convenient, less burdensome, or less expensive”

Barclay v. Pawlak – Failure to produce public blog entries is not significant enough to merit discovery sanctions

Net effect of widespread social media use may actually be a diminished need for document discovery! Examples:

PalTalk v. Sony – Plaintiff used LinkedIn to gather information about potential witnesses and sources of documentary evidence where defendants failed to provide meaningful discovery

B.M. v. D.M. – Wife’s public social media postings used to support Husband’s claims that she was capable of working

Public Content and E-Discovery

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18 U.S.C. §§2701 et seq.

Prohibits electronic communication and remote computing (including storage) providers from divulging contents of communication or data

Enacted in 1986, prior to the World Wide Web and widespread use of the internet

Crispin v. Christian Audiger:

SCA applies to social media sites / providers

Prevents third-party discovery through direct subpoenas

The Stored Communications Act

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EEOC v. Simply Storage:

1. “SNS content is not shielded from discovery simply because it is ‘locked’ or ‘private’.”

2. “SNS [Social Networking Site] content must be produced when it is relevant to a claim or defense in the case.”

3. Discovery limited to material relevant to the case

See also:

Bass v. Miss Porter’s: Court provided entire Facebook record of plaintiff to requesting defendant where unproduced portions contained some relevant info, suggested presence of additional relevant material

Burdine v. Covidien: Defendant denied discovery of plaintiff’s social networking sites as irrelevant to the issue of class certification

Muniz v. UPS: Law firm’s listserv emails and social media postings not relevant in determining legal fees

Relevance / Discoverability

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Social Media Discovery Requests

Requests

SCA: Make requests of content owners, not site owners

Obtain public content prior to serving requests, can aid in justifying requests (Romano v. Steelcase)1

Be prepared to justify how request targets relevant information

Objections

Quash third-party subpoenas of social networking services (Crispin v. Christian Audiger)

Object under Rule 26(b) to requests for publicly-available content

Object to broad requests on relevance grounds (Piccolo; Muniz; EEOC)

1. “[I]t is reasonable to infer from the limited postings on Plaintiff's public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.”

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The E-Discovery Process

How does the e-discovery process differ when social media is involved?

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Duty to preserve applies to social media, no special preservation order needed

Young v. Facebook: Court denied plaintiff’s motion for an order to preserve social media evidence1 absent showing that “extraordinary preservation requirements” were necessary

“Duty to preserve evidence that [civil litigants] know is relevant or reasonably could lead to the discovery of admissible evidence...backed by the court’s power to impose sanctions for the destruction of such evidence, is sufficient in most cases to secure the preservation of relevant evidence.” (emphasis added)

Information Management, Identification and Preservation

1. Note that plaintiff suffered from mental illness and was representing herself. The evidence at issue, referred to as the "DEAR LORD death page" implied that President Obama may be next after a string of celebrity deaths. Facebook was apparently considering removal of the page. See plaintiff's motion here: http://bit.ly/mXLK72

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Difficult to control retention, preservation, and changes made to social content

New social media archiving tools evolving for e-discovery purposes:

Smarsh

Hanzo Archives

Information Management, Identification and Preservation (cont’d)

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Collection

Similar collection issues to cloud computing

Facebook’s “Download Your Information” feature

Processing

File Types: New platforms mean new types of files to process

Metadata: New fields may be necessary to understand the import of collected social media content

Twitter should be easy – All text, metadata is in the tweet!

Collection and Processing

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Few vendors will be familiar with processing data of this type

Most social media content is currently text-based, sometimes with embedded images or audiovisual content

Key is to prepare it for review, production, and presentation in a way that preserves its original context and significance

Collection and Processing (cont’d)

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Review

Should preserve key features of native environment

How should social content be reviewed?

Should preserve key features of native environment

Document relationships in “traditional” electronic documents

Family (email / attachment)

Similarity (duplicate, near-duplicate)

Thread (email conversation)

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Review (cont’d)

Should preserve key features of native environment

Social document relationships

More conversation types

Wall posts, Re-tweets, Location data, Groups

Lots of new info to tell the whole story

“Activity Stream” model would probably be most helpful in re-producing timeline, but review tools aren’t currently set up to organize data this way

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Latest e-discovery tools have some social mapping analysis based on email metadata

May be useful in analyzing social media content as well

Example: Catelas

Analysis

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How do you produce social content as it is kept in the ordinary course of business?

Native environment is difficult to reproduce, TIFFs may lack info

Some parties ordered to turn over login information!

Zimmerman v. Weis Markets

McMillen v. Hummingbird Speedway

Production and Presentation

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Court given access or snapshot of entire social media profile:

Bass v. Miss Porter’s: Court produced entire thing to defendants

Zimmerman: Court rejected this approach as placing an unfair burden on court

Offenback v. L.M. Bowman: Court ordered partial production, said plaintiff could have reviewed and produced relevant info itself

Production and Presentation (cont’d)

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Today: Social media content primarily used for socializing and marketing, questionable e-discovery relevance

Google+ differentiators:

Walled-off private areas for social

Deep web integration

Near future:

Internal business communications take place in environments where enterprise has limited control

Corporate social content intertwined with personal social media content

Web becomes less distinguishable from its users

Google Plus – The Future?

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USA v. Jeffries:

Motion for temporary release from custody so accused could login to Facebook to collect info refuting government’s arguments based on Facebook data

Release denied because wife could still login to account to get needed info

Shymatta v. Papillon:

Defendant’s maintenance of a non-commercial cell phone review blog insufficient to subject him to general personal jurisdiction in any forum

Bonus: Other Social Media Caselaw

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Lenz v. Universal Music:

Plaintiff waived privilege by sharing details of attorney-client communications and attorney work product on her blog and in Gmail chats

Tarazi v. Oshry:

Third-party anonymous blog poster permitted to intervene to prevent identity from being discovered

Bonus: Other Social Media Caselaw (cont’d)

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LAST SLIDE

Find me to continue the conversationabout social media & e-discovery

Email steve.green@hudson.comHudson Blog http://www.hudsonlegalblog.com

Twitter @reviewninjaGoogle+ +SteveGreen

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B.M. v. D.M., 2011 NY Slip Op 50570U; 31 Misc. 3d 1211A; 2011 N.Y. Misc. LEXIS 1534 (N.Y. Sup. Ct. 2011)

Barclay v. Pawlak, 2010 U.S. Dist. LEXIS 33724 (D. Conn. Apr. 6, 2010)

Bass v. Miss Porter's Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009)

Burdine v. Covidien, Inc., 2011 U.S. Dist. LEXIS 14648 (E.D. Tenn. Feb. 11, 2011)

Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)

EEOC v. Simply Storage Mgmt., 270 F.R.D. 430 (S.D. Ind. 2010)

Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 119271 (N.D. Cal. Oct. 22, 2010); confirmed in Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 125874 (N.D. Cal. Nov. 17, 2010)

McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. County Ct. 2010)

Muniz v. UPS, 2011 U.S. Dist. LEXIS 11219 (N.D. Cal. Jan. 28, 2011)

Offenback v. L.M. Bowman, Inc., 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011)

Paltalk Holdings, Inc. v. Sony Computer Entm't Am., Inc., 2010 U.S. Dist. LEXIS 92229 (E.D. Tex. Sept. 3, 2010)

Piccolo v. Paterson, 2011 Pa. Dist. & Cnty. Dec. LEXIS 45 (Pa. County Ct. 2011)

Romano v Steelcase Inc., 2010 NY Slip Op 20388, 30 Misc. 3d 426, 907 N.Y.S.2d 650, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct. 2010)

Shymatta v. Papillon, 2011 U.S. Dist. LEXIS 43619 (D. Idaho Apr. 21, 2011)

Tarazi v. Oshry, 2011 U.S. Dist. LEXIS 37955 (S.D. Ohio Apr. 4, 2011)

United States v. Jeffries, 2011 U.S. Dist. LEXIS 5597 (E.D. Tenn. Jan. 20, 2011)

Young v. Facebook, Inc., 2010 U.S. Dist. LEXIS 98261 (N.D. Cal. Sept. 13, 2010)

Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011)

Appendix A: Citation List

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1524948 Alberta Ltd. v. John Doe 1-50, 2010 U.S. Dist. LEXIS 100482 (D. Utah Sept. 22, 2010) (third-party subpoenas of Facebook and Twitter allowed to identify defendants in expedited discovery prior to 26(f) conference)

Barnes v. CUS Nashville, LLC, 2010 U.S. Dist. LEXIS 52263 (M.D. Tenn. May 27, 2010) (Discovery granted of Facebook profile but not through subpoena due to SCA)

Bower v. Mirvat El-Nady Bower, 2011 U.S. Dist. LEXIS 36677 (D. Mass. Apr. 5, 2011) (SCA prevents subpoena of email)

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008) (in camera review of text messages for relevance prior to objections or privilege claims)

Park West Galleries, Inc. v. Hochman, 2010 U.S. Dist. LEXIS 12488 ( E.D. Mich. Feb. 12, 2010) (Summary judgment denied where LinkedIn profile created issue of fact whether defamatory writings were from an employee of party)

Zoosk Inc. v. Doe, 2010 U.S. Dist. LEXIS 134292 (N.D. Cal. Dec. 9, 2010) (Expedited discovery to identify defendants)

Zynga Game Network Inc. v. Doe, 2010 U.S. Dist. LEXIS 9390 (N.D. Cal. Jan. 21, 2010) (Social gaming company allowed limited subpoena of third-parties to identify defendants)

Appendix B: Add’l Citations (not mentioned in slides)