All posts tagged social media

How the ‘Internet of Things’ Will Impact Ediscovery

Most of us cannot fathom the day when every durable object around us is part of the “Internet of Things.” A world in which devices possessing IP addresses is the norm and not the exception. A world in which we interact with a dozen or more items in the course of a day that are “wired”, unassumingly gathering information about us and our interactions with our environment. When the “Internet of Things” becomes a reality, the deluge of data discoverable in legal actions will dwarf the data tsunami that is seemingly engulfing litigation teams today in 2014. Big data is only going to get bigger, my friends.

Today, ediscovery professionals turn over every rock – aka computer, laptop, server, phone, USB drive – to find relevant documents germane to a lawsuit. It’s not uncommon for a single commercial case to involve hundreds of thousands of emails and documents – all of which need to be examined and analyzed by the case team. Thankfully, technology has evolved at light speed to aid the increasingly daunting discovery process. From online review platforms, which saved young associates and paralegals from millions of paper-cuts, to cutting edge predictive coding tools that use artificial intelligence to weigh the responsiveness of a document in a matter – technology is now indispensable in legal discovery.

In the not-so-distant future, we all will live in an Internet ecosystem.  Our modes of transportation and locations, bio-medical devices, food and beverage consumption, purchasing habits, interactions with other humans and more will be catalogued by the “Internet of Things.” In a single day, we will leave digital fingerprints not only through the devices we carry, but also every object or establishment we interact with will possess metadata about our movements and decisions. Lawyers can only imagine the impact this will have on legal claims and defenses, with data security and privacy issues coming to mind. The number of “rocks” that ediscovery professionals will be called upon to collect, analyze and produce data from will be infinite. Ediscovery innovations have kept pace so far, but document review databases and ediscovery technology platforms will have to kick into warp drive to cope with this vast volume of new and diverse discoverable data from the “Internet of Things” revolution.

Antagonists will protest that data from everyone’s Internet toasters and coffee makers will have minimal relevance in litigation. Could the same insular thinking have argued that social media data in Facebook, Twitter, or LinkedIn would not be impactful in a law suit? We need to think more broadly. The “Internet of Things” will only lead to the ediscovery of everything. It will be a brave, new world of digital law and practice.

Top 5 Ediscovery Case Summaries – May 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case law summaries for May, 2013.

Court Considers Possibility of Clawback Order in Undue Burden Assessment
In re Coventry Healthcare Inc., 2013 WL 1187909 (D. Md. Mar. 21, 2013).

Sanctions Granted for Social Media Spoliation
Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25, 2013).

Court Looks to Circumstantial Evidence to Rely on Evidence from MySpace
People v. Kucharski, 2013 WL 1281844 (Ill. App. 2nd Dist. Mar. 29, 2013).

Proportionality is Key Principle in Predictive Coding Case
In re Biomet, 2013 WL 1729682 (N.D. Ind. Apr. 18, 2013).

Da Silva Moore Drama Dissipates
Da Silva Moore v. Publicis Groupe SA, 12-5020 (2d Cir. Apr. 10, 2013).

To check out more ediscovery case summaries, visit our Case Law library.

Top 5 Ediscovery Case Summaries – April 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case law summaries for April, 2013.

Court Denies Motion to Compel Social Media Data
Potts v. Dollar Tree Stores, Inc., 2013 WL 1176504 (M.D. Tenn. March 20, 2013).

Insufficiently Detailed “Image Processing” Not Included in Taxable Costs
Taylor v. Mitre Corp., 2013 WL 588763 (E.D. Va. Feb. 13, 2013).

“Careless” Deletion of ESI Warrants Exclusion of Evidence, Adverse Inference
E.E.O.C. v. Ventura Corp, Ltd., 2013 WL 550550 (D.Puerto Rico Feb. 12, 2013).

Court Denies Motion for Protective Order, Cost-Shifting
Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., 2013 WL 541972 (D.N.J. Feb. 11, 2013).

Discovery Requests Outweighing Amount in Controversy are Unduly Burdensome
Conn. Gen. Life Ins. Co. v. Scheib, 2013 WL 485846 (S.D. Cal. Feb. 6, 2013).

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Top 5 Ediscovery Case Summaries – February, 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case summaries for February, 2013.

Court Elaborates on the Standard for Bad Faith Spoliation in Patent Infringement Case
Micron Tech., Inc. v. Rambus, Inc., No. 00-792-SLR (D. Del. Jan. 2, 2013).

Defendant Insurance Company Cannot Investigate Nonpublic Sections of Plaintiffs’ Social Networking Accounts
Keller v. National Farmers Union Property & Cas. Co., 2013 WL 27731 (D. Mont. January 2, 2013).

Court Imputes the Culpable Mind of Defendant’s General Counsel to Defendant Corporation
Day v. LSI Corp., 2012 WL 6674434 (D. Ariz. Dec. 20, 2012).

Federal Court Rules for Further Briefings on Reasonableness of Fee Request under State Law
E.I. DuPont de Nemours and Co. v. Kolon Industries, Inc., 2012 WL 6540072 (E.D. Va. Dec. 13, 2012).

Cell Phone is Not a “Facility” Protected by the Stored Communications Act
Garcia v. City of Laredo, 2012 U.S. App. LEXIS 25370 (5th Cir. Tex. Dec. 12, 2012).

To read more ediscovery case summaries, visit our resource library.

Learning to “Like” Social Media EDiscovery

There is no way around it—social media has become an integral part of our everyday communication. It is no longer just some fleeting trend among the cool and hip. The use of social media has increased exponentially in the past few years. Evidence? How about these numbers:

  • Facebook has exceeded one billion users
  • Twitter has more than 500 million users

Social media is also no longer limited to personal use. Approximately 80 percent of companies now use social media to market products and build consumer relationships. Not only is social media a staple in everyday communication, it is now smart business.

While “friending” and “tweeting” provide numerous benefits, legal professionals have been anxiously mulling over the numerous challenges of social media ediscovery. In 2012, issues related to privacy, discoverability, preservation, collection and authentication of such data permeate discussion amongst courts, litigators and commentators. Although governing standards have yet to emerge on these issues, expect best practices regarding social media to continue to evolve.

  • Discoverability –

    As demonstrated by E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc.,[1] many courts have favored broad discovery. There, the court reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information. However, other courts have rejected broad discovery of such data, finding that the Federal Rules do not grant a generalized right to rummage at will through information a person has limited from public view.[2]

  • Preservation and Collection –

    Due to the intricacies of social media electronically stored information (ESI), which is frequently changing and retained by the platform provider on remote servers, preservation is no easy task. Additionally, social media collection options such as taking screenshots and proxy monitoring are still rudimentary at best. Regardless of the method chosen, counsel must start early, obtain consent and request login information before collecting.  Counsel should also consider retaining an expert to avoid potential issues later on in the discovery process.

  • Authentication –

    The contents of these sites are not self-authenticating documents, so legal professionals often have to be proactive to ensure the account holder posted the relevant information. Best practices suggest that practitioners should collect as much evidence as possible—including subscriber reports from the service provider and relevant metadata—to resolve questions about ownership, access to the account and authorship of the post.

Practices and laws regarding social media ediscovery will remain in a constant state of change. Ignoring social media is no longer feasible, practical or defensible. At the end of the day, legal professionals must “follow” or “like” such change to stay ahead of the curve or at least ride the crest of the wave.


[1] 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

[2] Tompkins v. Detroit Metro. Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012)

Should Old Acquaintance be Forgot…

Ediscovery Trends for 2013

… and …wait, how does the rest of that song go?

New Year’s is deeply rooted in tradition, and one of the most tried and true traditions is making resolutions. Like the New Year’s resolutions you’re planning, 2013 will be all about change for ediscovery. Here are some ediscovery trends and topics we’re likely to hear about in the coming year:

Fine-tuning the most appropriate instances and best practices for technology-assisted review (TAR)

Following the Da Silva opinion, numerous courts issued opinions approving TAR, such as Global Aerospace v. Landow Aviation in Virginia, and In re Actos (Pioglitazone) Products Liability Litigation in the Western District of Louisiana.  Like Da Silva, both of these opinions approved TAR due to detailed procedures that ensured defensible results. Additionally, TAR opinions were not limited to cases where it was proposed by one of the parties, as the Delaware Court of Chancery recently ordered sua sponte that both parties leverage TAR and share a vendor for an indemnity suit in EORHB v. HOA Holdings, LLC. In 2013, expect the number of opinions discussing TAR and related issues to increase significantly.

Social Media discoverability: how much is too much?

Notably, courts diverged on the discoverability social media data. Several opinions, such as Original Honeybaked Ham Co. of Georgia, Inc., allotted broad discovery of such data, likening it to an “everything about me folder.” Other courts, however, applied a narrower standard, finding that the Federal Rules do not grant a “generalized right to rummage at will through information [a person] has limited from public view.” As we head into 2013, practices and laws regarding social media will remain in a constant state of change.

Continued buzz regarding ediscovery cost allocation

When it comes to which party pays for ediscovery costs, courts across the country have yet to settle on a standard. Ediscovery cost allocation remains ripe for consideration by the Advisory Committee on Civil Rules, who will likely evaluate amendments to the Federal Rules of Civil Procedure in the near future.

Above all else in 2013, continue to gain proficiency in applicable technology solutions and evolving case law. Although the technology and practices might change, conducting ediscovery efficiently and defensibly will never go out of style in the eyes of the judiciary.

Ten Tips for Managing Social Media in Ediscovery

Ten Tips for Managing Social Media in Ediscovery

With increasing frequency, companies across the globe are leveraging social networking tools to effectively market products and build consumer relationships. However, for an unprepared litigant, a discovery request can quickly go sour due to the dynamic nature of information stored on these sites. Below are ten tips to help manage risks and meet discovery obligations associated with social media.

  1. Start preparing now.  The Federal Rules of Civil Procedure consider “any type of information stored electronically” discoverable—which generally includes data from social media.1 Although case law is still developing, Gartner predicts that by 2013, 50 percent of all companies will have been asked to produce material from a social media site for ediscovery.2 To avoid being blindsided by a request for such data, corporations and counsel should start managing social media now.
  2. Issue litigation holds early. Since social media data is discoverable, the duty to preserve falls on the parties named. However, several preservation challenges arise due to the unique nature of the data, which is not only constantly changing, but also password protected and stored on remote servers. Furthermore, there are few reliable technologies available to preserve this data. Based on these factors, timing is critical for proper preservation: if litigation is anticipated, all relevant data should be identified immediately and litigation holds should be issued to account holders and service providers.
  3. “Privacy” settings will not protect social media data from discovery. Although a uniform standard has yet to emerge, the judiciary generally seems to be moving toward greater permissiveness for the discoverability of social media. Based on recent decisions, there exists the strong likelihood that privacy concerns will be outweighed by a sufficient showing of relevance. Notably, courts have reasoned that the very nature of these sites requires disclosure,3 dismissing expectations of privacy as “wishful thinking.”4
  4. Obtain consent before collecting data. Social media data is usually retained solely by the service provider, and collecting it without consent of the user can violate federal or state wiretapping laws. Before attempting to access any information from a social networking site, make an effort to obtain the user’s consent or a court order.
  5. Don’t “false friend” to collect from social media. Courts and ethics committees strongly disfavor “friending” under false pretenses. Thus, anyone investigating a user cannot represent him or herself as a “friend” in order to gain access and surreptitiously collect data.5
  6. Avoid self-collection. In contrast to e-mail, servers or hard drives, collecting social media data collection is akin to existing web collection practices using page captures or web crawlers. To ease the collection process, sites like Facebook offer a “download your information” option. However, as in any data collection scenario, self-collection risks spoliation, so it is always smarter to collect with the assistance of an expert consultant.
  7. Leverage a service provider to conduct review.  Arranging collected information for review poses several challenges, such as whether “families” must be maintained or whether each user’s collection should be presented in a single review document. These questions are better addressed when discussed with a service provider to ensure the most seamless review possible.
  8. Consider pertinent laws, such as the Stored Communications Act. Courts are beginning to order production of social media data. However, the Stored Communications Act (SCA) prohibits “Electronic Communication” and “Remote Computing” providers from divulging the content of its users’ communications and data.6 Case law relating social media production to the SCA is scarce; however, the Central District of California determined that social media sites acted as both Electronic Communication Service and Remote Computing Service providers—thus prohibiting production from a provider.7
  9. Don’t ban use of social media outright. According to a 2011 study, nearly 80 percent of Fortune Global 100 companies leverage at least one form of social media to conduct business.8 Policies that effectively ban social media in the workplace would rob an organization of a valuable tool for marketing products and connecting with consumers.
  10. Craft proactive policies that encourage prudent posting. In order to leverage the benefits of social media while mitigating the risks it poses for litigation, companies and counsel should craft proactive policies that manage employee use of social media. Such a policy should be well disseminated, detailing a no-privacy stance while reserving the company’s right to monitor usage. Furthermore, policies should be flexible to properly mesh the evolving role of these sites with existing information policies, applicable regulations and corporate culture.

Social media is here to stay. Practitioners and organizations must proactively address the impact these sites have on litigation and information governance. While the items identified above are a great start to understanding the potential issues posed by social media in the workplace, there is no “one size fits all” approach to managing this data. If you are unsure how to approach these difficult issues, engage a trusted custodian to navigate the tricky waters of these virtual mediums.

1Fed. R. Civ. P. 34(a) advisory comm. notes.

2 Debra Logan, Social Media Governance: An Ounce of Prevention, Gartner Research (Dec. 17, 2010).

3 See, e.g., EEOC v. Simply Storage Mgmt, LLC., 270 F.R.D. 430 (S.D. Indiana 2010); Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011).

4 Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010).

5 See, e.g., N.Y.C. Bar Assoc. Comm. on Prof’l Ethics, Formal Opinion 2010-2 (Sept. 2010); Phila. Bar Assoc. Prof’l Guidance Comm., Ethics Opinion No. 2009-02 (March 2009).

6 18 U.S.C. §§ 2710 et seq.

7 Crispin v. Audigier,Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010).

8 2011 Fortune Global 100 Social Media Study, The Burson-Marsteller Blog (Feb. 15, 2011), http://www.burson-marsteller.com/Innovation_and_insights/blogs_and_podcasts/BM_Blog/Lists/Posts/Post.aspx?ID=254

State Supreme Court Migrates to Social Media, Will Tweet Rulings

State Supreme Court Migrates to Social Media, Will Tweet Rulings

 

On October 18, 2011, the Administrative Office of Pennsylvania Courts issued a press release announcing their movement to social media: effective last Tuesday, The Supreme Court of Pennsylvania has taken flight on Twitter.

Now, anyone can follow @SupremeCtofPA [http://twitter.com/#!/SupremeCtofPA] for instant notification and access to state court orders, new rules, opinions, and concurring and dissenting opinions written by justices.

According to Supreme Court Justice Michael J. Eakin, “the manner in which the Commonwealth’s citizens expect to receive information from their government is changing rapidly,” and the Twitter feed is “a logical extension of an ongoing need to enhance delivery of court information … in an efficient and cost effective manner.”

For those following the feed, all tweets will contain a brief summary of newly posted material, such as, for example, “Five Disciplinary Orders posted today,” followed by a link to the state court system’s website. Additionally, “Follow us on Twitter” links will appear on the state court system’s website.

While feed should increase online access to its rulings, those wishing to communicate questions, problems, or concerns with the Pennsylvania Supreme Court will have to do so through the Judiciary’s website.

This announcement is another yet another decision by the Supreme Court of Pennsylvania to increase public access to their court system. Just a few months ago, they announced their decision to allow the Pennsylvania Cable Network to tape vocal arguments inside the courtroom (although they cannot broadcast them live). As of the date of this blog post, the Court already had 800 followers and counting. It will be interesting to see if other courts begin to follow suit.

Social Media in the Workplace – You Be the Judge

Social Media in the Workplace – You Be the Judge

It seems there is simply no avoiding it – social media is everywhere. From PCs to smartphones, for the young and the old, social media pervades every aspect of modern communication. As of June 2010, Americans spent 22.7% of their time online using social networking sites and blogs, representing a 43% increase from June 2009. The growing ubiquity of social media means that it is becoming increasingly prevalent in circumstances where it may not necessarily be welcome, such as the workplace.

In 2009, 53% of employee respondents to a Deloitte survey believed their social media activity was none of their employers’ business, and 61% reported that they would not alter their social media behavior even if their employers were monitoring it. Employers everywhere are grappling with the fuzzy ethical, legal and security issues presented by social media as they try to effectively manage this growing phenomenon. Permitting social media use under the guidelines of a well-written employee policy seems to be the best solution, but does it necessarily obviate the potential risks, and perhaps more importantly, is it worth it?

“Liking” Social Media in the Workplace?

Permitting the use of social media in the workplace undoubtedly has its benefits. As of 2009, 56% of business executives believed that using social networking sites helped their employees achieve a better work-life balance. This will become increasingly true as social media continues to make bold strides toward overtaking e-mail as the predominant form of communication. Evidence shows that a large portion of social media’s growth in online time has already come at the expense of e-mail, which took a whopping 28% decline from 2009 to 2010. According to a recent Gartner publication, social media is predicted to replace e-mail as the predominant form of communication by as early as 2014.

In light of social media’s growing importance, companies are striving to permit and control its use, which at least in theory seems plausible. Because social media is still relatively new, case law directly on point is scarce. However, given social media’s similarity to (and predicted succession of) e-mail, the principles applied in cases discussing e-mail in the employment context can likely be extrapolated to the treatment of social media in coming years. Well-written employee usage policies have gone a long way toward providing employers authorization to monitor e-mail activity as well as insulation from potential liability for abuse. Some policies have even been enough to extinguish claims of privilege – both attorney-client and marital – made over employer computer systems. In Alamar Ranch, LLC v. County of Boise, the court found that the company placed all employees on notice that e-mails would become the employer’s property, and determined that privilege was therefore waived with respect to the e-mails sent using the client’s work account. In a recent case out of the Southern District of New York, the court similarly found that marital privilege did not extend to communications made over the employer’s systems because the defendant was aware of the policy that expressly banned personal use and reserved the rights of routine e-mail monitoring and third party access to employee e-mails.

Extending these principles to social media, it seems probable that employers can effectively reserve the right to monitor social media activity and extinguish any expectation of privacy through well-written employee use policies – as all responsible employers wishing to permit social media use should. But while most employers concerned about social media liability tend to end the analysis here, perhaps it is where they should begin.

If employers want to permit social media use, then they must reserve the right to monitor it. However, does that right to monitor implicate any concomitant duties they may be less willing to take on?

Employer Liability for Employee Abuse?

One of the most distinguishing characteristics of social media is that users tend to be more forthcoming and candid than on traditional forms of media. This can, and has in fact already, led to many situations where employees inadvertently disclose confidential information or make inappropriate remarks. If an employer has reserved the right to monitor social media use, then to what extent are they responsible for inappropriate activity? Take for example, Amira-Jabbar v. Travel Services, where an employee argued that her employer was responsible for discriminatory comments made by coworkers on Facebook because it permitted access to the site during company time. The court ultimately determined the employer was not liable based on their prompt reaction to completely block access to the social networking site from its systems, but no indication was given that it could not have otherwise been responsible had it acted differently.

Discovery Obligations?

Another concern should be whether allowing employee access to social networking sites extends the employer’s duty to preserve and produce electronically stored information into this realm. One can only imagine the litany of ethical and legal issues such a situation could spawn. The scope of discovery is notoriously broad, permitting an opposing party to request any non-privileged, relevant information, or information reasonably calculated to lead to the discovery of admissible evidence. At face value at least, it appears reasonable that an opponent could seek discovery from social networking sites. However, relatively few companies currently archive social media. Could the failure to preserve this evidence lead to spoliation charges?

Perhaps more challenging, to what extent does the reservation to monitor social media activity grant an employer the right to access an employee’s personal account? As technology continues to evolve, “the line separating business from personal activities can easily blur” the Supreme Court of New Jersey aptly noted in the opening of its opinion in Stengart v. Loving Care Agency, Inc. The case addressed the question of whether an employee use policy granted an employer the right to access e-mail communications conducted via an employee’s personal account but over an employer-issued laptop. The court ultimately ruled that the employer was not entitled to privileged e-mail communications made between a former employee and her attorney through her personal Yahoo! account. However, the trial court originally found that the employee use policy effectively converted the communications into company property, and had it not been for the underlying privilege issues upon which the Appellate Division and Supreme Court relied on in reversing the decision, the original ruling may well have stood. This is especially true in light of the view held by some courts that sharing personal information is “the very nature and purpose of these social networking sites,” so any hope for “privacy is no longer grounded in reasonable expectations, but rather some theoretical protocol better known as wishful thinking.” Nonetheless, while some employees may be comfortable with their employer monitoring their social media activity, most would certainly be unwilling to concede ownership – and surprised to learn of the possibility.

You Be the Judge

While the issues presented here are only theoretical, they point up the uncertainty surrounding social media. As an employer, should you allow social media use? As an employee, should you exercise that permission? For both, is it even worth the risk?

Tell us what you think.

Case Law: Offenback v. L.M. Bowman, Inc

Case Law

Court Chides Plaintiff for Not Reviewing Own Facebook Account for Responsive Information

Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011). In this personal injury case, the defendants requested an in camera review of the plaintiff’s Facebook and MySpace accounts, arguing the plaintiff’s claims of physical and psychological impairment made relevant any evidence that documented the plaintiff’s social life, physical capabilities and emotional state of mind. To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff agreed that limited public information on his Facebook account was discoverable and provided the password to the court (the plaintiff claimed he could no longer access his MySpace account). Upon review, the court agreed to the relevance of a limited amount of photographs and postings that reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered production of this information. In a closing footnote, the court stated it was confused as to why intervention was necessary since the parties agreed that at least some of the information was relevant. The court further noted the plaintiff should have reviewed his own Facebook account for potentially responsive information, only soliciting the court’s assistance if a dispute remained.

Commentary

The discoverability of social media continues to be a popular topic throughout the industry. Now we want to know – what is your company or firm doing to address social media? Have you encountered the need to preserve, review and produce this evidence?

 
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