Embed Size (px)
Citation preview
E-Discovery and Social Media:
Latest Litigation Challenges Preserving and Collecting Tweets, Facebook Postings, LinkedIn Updates and Other Content
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
TUESDAY, MARCH 12, 2013
Presenting a live 90-minute webinar with interactive Q&A
Anthony J. Diana, Partner, Mayer Brown, New York
Daniel L. Regard, Managing Director, iDiscovery Solutions, Washington, D.C.
Sound Quality
If you are listening via your computer speakers, please note that the quality of
your sound will vary depending on the speed and quality of your internet
connection.
If the sound quality is not satisfactory and you are listening via your computer
speakers, you may listen via the phone: dial 1-866-869-6667 and enter your PIN
when prompted. Otherwise, please send us a chat or e-mail
[email protected] immediately so we can address the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing Quality
To maximize your screen, press the F11 key on your keyboard. To exit full screen,
press the F11 key again.
For CLE purposes, please let us know how many people are listening at your
location by completing each of the following steps:
• In the chat box, type (1) your company name and (2) the number of
attendees at your location
• Click the SEND button beside the box
FOR LIVE EVENT ONLY
If you have not printed the conference materials for this program, please
complete the following steps:
• Click on the + sign next to “Conference Materials” in the middle of the left-
hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a
PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
How Social Media Content Impacts E-Discovery Risks and Costs
March 12, 2013
Anthony Diana
Partner
Mayer Brown LLP
Dan Regard
CEO
iDiscovery Solutions, Inc.
Anthony J. Diana Dan Regard Partner – Mayer Brown LLP CEO – iDS [email protected] [email protected]
6
7
Social Media: Expanding Scope of Discoverable ESI
8
A Shopping Trip With
Social Media
A SHOPPING TRIP
With Social Media
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
A SHOPPING TRIP
With Social Media
Just hung out with Dan (again). I love Whole Foods. It’s a beautiful place.
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
Digital Footprint
• Items purchased
• Timing of purchase
• Amount of time in store
• Order of purchase
• Gap between purchases
• Location of purchase
• Location of my phone
• Location of my home
• Economic Demographics
• Pictures
• Video
• Living Social
• Park Mobile
• Grocery IQ
• Yelp
• AT&T
• Foursquare
• Google E-mail
• Loyalty Card
• Bank of America
Who Else Bought This Data?
47
• It will be, and for many people is, principal source of written
communication
• Younger generation (i.e, new employees) will not use email
• Primary source of evidence in many actions
• Already dominates matrimonial and criminal cases
• Helps blur lines between business and personal
• Moves information out of enterprises
• Third-party hosts data
• Mobile devices
• Smartphones
• Tablets (iPads)
Should We Care About Social Media?
48
• Powerful tool that can create powerful evidence – Interactivity
– Speed and ease of use
– Type of information (pictures, video, links)
– Publicly available
– Credibility • Nielsen study found that 70% of internet users trust online
recommendations
• Ironically, not very credible
• Alias
• Photoshop
• Some features not exact (time, location)
Should We Care About Social Media?
49
• Sponsored External Sites
– Evidence of communications with customers
• Disgruntled employee/litigant may post defamatory information
– Evidence of employment opportunities/criteria
• Employment decisions
• Interaction with litigant
– Evidence of an Organization’s Self-Image
• mes or narrative
– Diversity
– Ethical Standards
How Can Social Media Be Used in Litigation?
50
• Internal Sites
– Evidence of communications with and among employees
• Discrimination, harassment, hiring and firing decisions, etc.
• State of mind
• Admissions
How Can Social Media Be Used in Litigation?
51
• Personal Sites
– Evidence of time and place
• Geo-location features
• Time-stamp features
• Pictures or text
– Evidence of actions
• Seeking new employment (LinkedIn)
• Inappropriate behavior
– Leisure activities during work hours
– Affairs or inappropriate relations
– Drug or alcohol abuse
– Criminal activity
How Can Social Media Be Used in Litigation?
52
• Personal Sites
– Evidence of communications
• State of mind
• Admissions
– Evidence of bias
• Jury Section
– Should not limit only to employee/litigant
• Accounts in household will have potentially important evidence
How Can Social Media Be Used in Litigation?
53
54
Social Media: Decision Tree for Discovery
“Decision Tree” for Discovery of Social Media
• Under liberal discovery standard of Fed. C. Civ. P. 26(b)(1) or State equivalent, is content of social media discoverable?
• Burdens: Complexity of Data
– Structured database
– Linked content
– Layered content
– Different types of content (video, audio)
• Burdens: Preservation, collection and review
– Lack of technical support
– Difficulties in reviewing for relevance
55
• What can be done as alternative to discovery of content?
– Deposition of “author/published”
– Conduct discovery of or sources for equivalent of content
– Question: Are eir or both of se adequate “substitutes” for content?
• How can relevance of content be shown?
– For content of “public” site
– For content of “private” site
“Decision Tree” for Discovery of Social Media
56
• If content of public site sought?
– Content described by a witness
– Content described by investigator (ethics question)
• If content of private site sought?
– Content described by witness
– Content described by investigator (ethics question)
– Public site yielded information
“Decision Tree” for Discovery of Social Media
57
• Assuming discovery allowed, what procedures are available?
– Adversary given authorization to view site (privacy question)
– Party’s attorney ordered to search site and produce non-privileged, relevant information
– Court given authorization and conducts in camera (judicial resource issue)
– Special master appointed and conducts in camera (cost and possible cost allocation issues)
“Decision Tree” for Discovery of Social Media
58
• What arguments can be made under Fed. R. Civ. P. 26(b)(2)(C) or State equivalent?
– Equivalent available elsewhere
– Undue cost or delay
• What about privacy?
– Privacy per se as a basis to bar any discovery of content?
– Basis for protective order, one- or two -tiered?
“Decision Tree” for Discovery of Social Media
59
• Stored Communications Act:
– Jennings v. Jennings, Opinion No. 27177 (S.C. Sup. Ct. Oct. 10, 2012)
– Low v. LinkedIn Corp., Case No.: 11-CV-01468-LHK (N.D. Ca. July 12, 2012)
– T.G. Ackermann, “Consent and Discovery Under Stored Communications Act,” Federal Lawyer 42 (Nov./Dec. 2009)
60
Social Media: Law Regarding Discovery
“I see no principled reason to articulate different standards for discoverability of communications through email, text message, or social media platforms. I refore fashion a single order covering all se communications.”
Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv 00127-PK (D. Ore. Aug. 29, 2012) (allowing discovery of, among or things, plaintiff’s email and text messages as well as her “social media content”) But re are limits:
• Keller v. National Farmers Union Prop. & Cas. Co., No. 9:12-cv-00072-DLC-JCL (D. Mont. Jan. 2, 2013) (denying access to private portions of social media cite absent threshold showing of need based on content of public portions)
• Howell v. Buckeye Ranch Inc., No. 2:11-cv-01014 (S.D. Ohio Oct. 1, 2012) (directing defendants to serve discovery requests that seek relevant information; plaintiff’s counsel may access private portions of social media accounts and provide responses)
• Arcq v. Fields, No. 2008-2430 (Pa. Ct. Common Pleas Dec. 8, 2011) (denying access to plaintiff’s private social network site given defendant’s failure to show anything from plaintiff’s public site)
61
Social Media: Law Regarding Discovery
• Scenario: A class action lawsuit is brought against a large food manufacturing company for false advertising regarding one of its popular products. complaint specifically cites several social media aspects of its marketing campaign, including company’s product-specific Facebook and Twitter accounts, and dissemination of false advertising through personal accounts of company’s employees. As in-house counsel, what do you do?
Social Media: Preservation
62
• Preserving Company’s Social Media Accounts:
– Who controls accounts—in-house or third party?
– What is scope of preservation?
• Time period/versions
• Content
– How to preserve?
• Technical requirements
• Preserving for admissibility
• Preserving Employee’s Personal Social Media Accounts
– Does company have “control” over accounts?
Social Media: Preservation
63
• Scenario: class action lawsuit against large food manufacturing company proceeds into discovery. focus of discovery is on marketing and advertising materials, including company and employee social media accounts. As in-house counsel, what do you do?
Social Media: Collection and Production
64
• Collecting and Producing Company’s Social Media Accounts
– Who controls accounts—in-house or third party?
– How do you gain access?
– What is scope of collection?
• Which content to collect?
– How to collect?
• Collecting for admissibility
• Collecting and Producing Employee’s Personal Social Media Accounts
– How do you gain access to collect?
– What is scope of collection and production?
Social Media: Collection and Production
65
• Scenario: After filing of lawsuit, a number of anonymous entries on company’s Facebook account contain damaging and false information about product in question, but re is specific information in entries about how product is made that raises concerns about where a company insider or plaintiff’s counsel (who is subject to a protective order) improperly leaked trade secrets. As in-house counsel, how can I determine who posted entries and use that information to stop such postings?
Social Media: Investigation of a Third Party
66
• Legal issues
• Ethical issues
• Privacy issues
• Admissibility/Auntication Issues
– Rule 901: “requirement of auntication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that matter in question is what its proponent claims.”
Social Media: Investigation of a Third Party
67
• Steps to Obtaining Evidence
– Trace originating IP back to subject’s computer
– Obtain subscriber information for subject account
– Tie sent items to a hard drive, smartphone
– Time-line communications to book-end subject communication
– Get data for timeline from on-line repository or forensic review of hard drive, smartphone
– Establish password-protected nature of account
– Party to a communication testifies as to aunticity
Social Media: Investigation of a Third Party
68
• Scenario: company has been notified that re is a criminal investigation concerning several executives’ alleged activities with certain foreign suppliers. You’ve begun internal investigation to determine where is any potential liability for company, relying on electronic communications stored at company. In course of investigation, you determine that re may have been communications between executives and foreign suppliers on personal Gmail accounts and on Linked In. You are concerned that government may have access to that information.
Social Media: Criminal Investigation
69
• Use of Social Media Evidence Used Frequently in Criminal Cases/Investigations
• Developing criminal law may impact development in civil context
– United States v. Meregildo, 2012 WL 3264501 (S.D.N.Y. Aug. 10, 2012) (no reasonable expectation of privacy in Facebook “friends”)
– United States v. Warshak, 2010 WL 5071766 (6th Cir. Dec. 14, 2010) (Stored Communications Act and good faith exception to warrant requirement)
– In re Appeal of Application for Search Warrant, 2012 VT 102 (Sup. Ct. Dec. 14, 2012) (affirming protocol for search warrant)
– People v. Harris, 949 N.Y.S.2d 590 (Crim. Ct. 2012) (no reasonable expectation of privacy in “tweets”)
– People v. Diaz, 244 P.3d 501 (Ca. Sup. Ct. 2011) (custodial search of cell phone)
• Key distinctions
– Constitutional protections
– Stored Communications Act exception
Social Media: Criminal Investigation
70
• Government Requests for Google Mail
– In 2012, U.S. government agencies made over 13,000 requests
• Most without warrants
– Only certain types of information need warrants
• Content of email
• Most requests through subpoena
– Information provided to Google as part of Google account
– Notice to user of request unless prohibited by law or court order
Social Media: Criminal Investigation
71
• Key source of evidence in all types of litigations and investigations
• Law will always be a step behind technology—so increased legal risk
• Technology developed to help with monitoring, compliance, preservation and production
• Privacy laws and information security, particularly when involving foreign data, becoming more important in litigations
Social Media: Future Developments
72
73
Questions?
Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and Mayer Brown logo are trademarks of Mayer Brown Practices in ir respective jurisdictions.
