Social media and the future of e-discovery. 4-17-15

1. Social Media and the Future of E-
Discovery
Bruce Malter, CEDS
General Manager,
Merrill Corporation
Chicago

3. Presenter
• 23 years of technology-based experience in
professional services space
• Focus on litigation support and e-discovery
• Previously a solutions group leader at
Project Leadership Associates, where he
built and managed litigation support
practice
• Among first to earn Certified E-Discovery
Specialist credential
Bruce Malter, CEDS
General Manager
Merrill Corporation

4. • Overview of Social Media Today
• Current State in eDiscovery
• Case law
• Stored Communications Act (SCA)
• How to Collect
• What’s Next
• Questions
Agenda

7. Over 1 Billion Registered
Users
Over 100M Registered Users
Over 150 Other Social Media Websites

8. • Consumers continue to spend more time on social networks than on any other
category of sites—roughly 20 percent of their total time online via personal
computer (PC), and 30 percent of total time online via mobile.
• Total time spent on social media in the U.S. across PCs and mobile devices
increased 37 percent to 121 billion minutes in July 2012, compared to 88
billion in July 2011.
• Facebook remains the most-visited social network in the U.S. via PC (152.2
million visitors), mobile apps (78.4 million users) and mobile web (74.3 million
visitors), and is multiple times the size of the next largest social site across each
platform.
• 51% of people aged 25–34 used social networking in the office, more than any
other age group.
FACTS ON SOCIAL MEDIA

10. FACEBOOK
STATS
• If Facebook were a country, it would be the
third largest in the world with its 1.2 billion
monthly active users.
(Behind China and India)

11. • Companies are on social media. They are interacting and connecting
with customers through Facebook, Twitter and blogs.
• In a study last year, numbers on the conservative side show that 65%
of Fortune Global 100 companies have active Twitter accounts, and
54% have Facebook fan pages. One third of these companies have a
blog.
This is how companies are doing
business today. With this presence
online comes legal obligations to
capture and save these
communications.
SOCIAL MEDIA IN THE WORKPLACE

12. When asked what challenges Corporate Counsel (EDD
management) will face in the future
• 23% of respondents cited managing mobile and social
networking data
• Cost control came in second at 18%
• New regulations (e.g., Federal Rules of Civil Procedure
amendments) 15%
BDO – October 2014
SOCIAL MEDIA IN THE WORKPLACE

13. “Social media content is like all other content that is
created by companies and individuals and is subject to the
same rules, laws and customs ... In e-discovery, there is no
difference between social media and electronic or even
paper artifacts. The phrase to remember is "if it exists, it is
discoverable.“ Gartner projects that half of all companies
will have been asked to produce social networking site
content in e-discovery requests by the end of 2013.”
Gartner VP Deborah Logan
SOCIAL MEDIA IN EDISCOVERY

14. Courts across the United States have now
made clear that discovery of social media is fair
game.

15. At the same time, courts have consistently
found that litigants will not be permitted to
engage in social media fishing expeditions;
rather, litigants will be required to show that the
sites likely contain relevant material.

16. SOCIAL MEDIA EDISCOVERY TO DATE HAS
TRADITIONALLY BEEN USED IN:
• Personal Injury
• Family (Divorce) Law
• Employment Law
• Intellectual Property
• Criminal
• Copyright
• Non-Compete
• Trademark
• Securities
• Breach of Contact
• Privacy breach

17. Charter Practices Int’l, LLC. v. Robb
2014 WL 273855 (D. Conn. Jan. 23, 2014)
• Breach of Contract
• Defendant failed to produce Facebook
communications relating to the breach, and the
court compelled production of the posts.
• http://www.natlawreview.com/article/social-
media-discovery-increasingly-important-
commercial-litigation (June 27, 2014).
RECENT CASE LAW
Ingrid & Isabel, LLC v. Baby Be Mine, LLC, et al
2014 WL 1338480 (N.D. Cal. April 1, 2014)
• Trademark Infringement
• Court compelled production of all customer
comments on Defendant’s Facebook and Twitter
accounts regarding the Belly Band as evidence of the
trademark infringement.
• http://www.natlawreview.com/article/social-media-
discovery-increasingly-important-commercial-
litigation (June 27, 2014).

18. SEC Netflix Investigation Report
• Netflix’s CEO announced on his personal
Facebook account how many hours of
content had been streamed by customers the
prior month
• Drove Netflix’s stock price up because the
information had not yet been publicly
disclosed.
• The SEC clarified that companies are to
advise the investing public about the methods
of communication that they might use to make
such disclosures, including corporate web
sites, social media, blogs, or otherwise.”
• http://www.crowell.com/files/Data-Law-
Trends-Report-2014.pdf
RECENT CASE LAW
United States v. Hassan
742 F.3d 104, 132-34 (4th Cir. 2014)
• Finding Facebook pages self-authenticating as
certified domestic business records
• Government presented certifications from the
records custodians of Facebook and Google, verifying
that the evidence had been maintained as business
records in the course of regularly conducted business
activities.
• Then tracked the Facebook pages and accounts to
the mailing and email addresses of the purported
creators via IP addresses.
• The court found that this two-step process fulfilled
the requirements of Federal Rule of Evidence
902(11).

19. “ACLU-MN settles Facebook case with Minnewaska School District. School
forces Riley Stratton, 12 years old, to give her Facebook username and
password”
Patrick Snay Lost $80,000 Because Of His Daughter’s Facebook Post: “Mama
and Papa Snay won the case against Gulliver … Gulliver is now officially paying
for my vacation to Europe this summer. SUCK IT.”
Sheriff Goes On A Firing Spree Because Of Facebook “Likes”
This unnamed sheriff fired six of his workers for “liking” a Facebook page. Elections were
coming up, and the sheriff was upset that one of his employees liked his competitor’s
page.
The employees filed a suit against the sheriff, but the judge immediately dismissed it. The
case states, “It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient
speech to merit constitutional protection.” It was overturned a few years later
RECENT CASES

20. THE STORED COMMUNICATIONS ACT (SCA)
18 U.S.C.§2702
• It was enacted as Title II of the Electronic Communications
Privacy Act of 1986 (ECPA).
• Federal law limiting the ability of Internet service providers to
disclose customer information.
• “(a)(1) a person or entity providing an electronic communication
service to the public shall not knowingly divulge to any person or
entity the contents of a communication while in electronic
storage by that service.”
• No exception for civil discovery subpoenas
http://www.americanbar.org/publications/blt/2014/01/01_d
ibianca.html

21. THE STORED COMMUNICATIONS ACT (SCA)
Party’s Obligation
• A responding party must produce relevant ESI within its
possession, custody, or control.
• SCA does not override the standard discovery process.
• A court can compel a party to execute an authorization
to release information associated with a user’s social
media account.
http://www.americanbar.org/publications/blt/2014
/01/01_dibianca.html
https://www.facebook.com/about/privacy/

22. THE STORED COMMUNICATIONS ACT
(SCA) 18 U.S.C.§2702
• Facebook’s Law Enforcement & Third Party Matters Policy:
• “Federal law does not allow parties to obtain account contents
(ex. messages, Timeline posts, photos) using subpoenas. See
the Stored Communications Act, 18 U.S.C.§2701 et seq.”
• Courts have not adopted a uniform approach to handling
requests for social network information.
http://www.americanbar.org/publications/blt/2014/01/01_dibianca.html

23. Crispin v. Christian Audigier, Inc.
717 F. Supp. 2d 965 (C.D. Cal. 2010)
• Plaintiff moved to quash subpoenas Defendant
served on 3rd party social media.
• Court held:
• As electronic communication
service (ECS) providers under
the SCA, they were
prohibited from disclosing.
• First case holding that some social network
information is protected from subpoenas under
the SCA
http://www.americanbar.org/publications/blt/2014/01/01_dibia
nca.html
http://associatesmind.com/2015/01/26/social-media-subpoena-
guide-2015-edition/
THE STORED COMMUNICATIONS ACT (SCA)
Case Law
Romano v. Steelcase Inc.
907 N.Y.S.2d 650, (Sup. Ct. 2010)
• Plaintiff claimed she was bedridden and
housebound, but her public Facebook posts
show her outside of the home.
• Defendant requested access to her private posts
• Court disregarded the SCA finding the request
within the scope of permissible discovery under
New York law.

24. • How do you go about seeking social
media data in e-discovery?
• What are the best practices for
authenticating this data?
• What kind of software is used to
preserve social media data?

25. 1. Print the page/screenshot
2. Download using Social Media Download tool
3. Software Applications
4. Forensics
HOW TO COLLECT FROM SOCIAL MEDIA

26. 1. PRINT THE PAGE/SCREENSHOT
• Simple option
• Static printout of the page
• No metadata
• Similar to printing an email
• Not defensible

27. 1. PRINT SCREEN
Missing Text
Comments/Like
not showing
Video – can’t watch
More Below
Links Don’t
Work
Overall
Appearance
No Meta
Data

28. Downloading Your Info
How can I download my information from Facebook?
You can download your information from your settings. To download your information:
1.Click at the top right of any Facebook page and select Settings
2.Click Download a copy of your Facebook data below your General Account Settings
3.Click Start My Archive
Because this download contains your profile information, you should keep it secure and be careful when storing, sending or uploading it to any
other services.
Learn more about what info is included in your download. If you don't have a Facebook account, you can make a data access request.
More info
Get help for mobile apps and browsers
Last edited about 4 months ago
Was this answer helpful? ·
Permalink · Share
Can I pick and choose which information I would like to download?
What security measures are in place to make sure someone else doesn’t download a copy of my information?
Learn more about what's included in your download.
2. USE SOCIAL MEDIA TOOLS

29. Downloading your Twitter archive
Downloading your Twitter archive to allows you to browse a snapshot of your Twitter information, starting with your
first Tweet.
To download and view your Twitter archive:
Go to your account settings by clicking on the profile icon at the top right of the page and selecting Settings from the
drop-down menu.
Click Request your archive.
When your download is ready, we'll send an email with a download link to the confirmed email address associated
with your Twitter account.
Once you receive the email, click the Go now button to download a .zip file of your Twitter archive.
Unzip the file and click index.html to view your archive in the browser of your choice.
Please note: It may take a few days for us to prepare the download of your Twitter archive.
2. USE SOCIAL MEDIA TOOLS

30. PROS
• Easy to get content from your page in one click
• You get all of the content from your page going back to the beginning of
your timeline
• The media is placed into separate folders -- there are folders for all of
your pics, for videos, etc.
CONS
• You only can download YOUR page
• The output does not look like the page itself
• Chain of custody is not maintained
• No context
• Difficult to generate a recognizable output
2. USE SOCIAL MEDIA TOOLS

31. • Captures the entire webpage
• Automatically Captures Metadata
• Content in one cloud account
• Integrates with Litigation Tools like Relativity
• Data is collected and indexed from social media streams, linked content and websites
through APIs, webmail connectors and direct web navigation.
• Authentication
• Search Capability
• Production
3. SOFTWARE APPLICATION

32. Forensic Collection
• Thorough and Accurate
• Current technology allows for continuous collection
• Preserves metadata fields pertaining to specific service
• Time Consuming
• More Expensive
4. FORENSICS

33. ADMISSIBILITY
“…(a screen capture) fails to identify who retrieved the website
printout, when and how the pages were printed, or… the contents
of the website on a certain date”
Gerald L. Rushfelt, US Magistrate Judge
(Toytrackerz LLC v. Koehler)

34. Maryland Approach
Permissible methodologies for authenticating social media
evidence:
1. Testimony of the creator,
2. Documentation of the internet history or hard drive of
the purported creator's computer, or
3. Information obtained directly from the social networking
site
ADMISSIBILITY
Authenticating Social Media Evidence

35. ADMISSIBILITY
Authenticating Social Media Evidence
Texas Approach
"a proponent can authenticate social media evidence using
any type of evidence so long as he or she can demonstrate
to the trial judge that a jury could reasonably find that the
proffered evidence is authentic.”

36. The next Generation and where Social
Media eDiscovery is going

37. Social Media and eDiscovery…

38. Contact Info
Bruce Malter
312-386-2278
bruce.malter@merrillcorp.com