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Presenting a live 90‐minute webinar with interactive Q&A
E‐Discovery and Social Media: yEvolving Litigation ChallengesPreserving and Collecting Tweets, Facebook Postings, LinkedIn Updates and Other Content
T d ’ f l f
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
THURSDAY, APRIL 14, 2011
Today’s faculty features:
Anthony J. Diana, Partner, Mayer Brown, New York
Jason Gonzalez, Managing Director, Stroz Friedberg, Los Angeles
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S i l M di R l tiSocial Media Revolution
E‐Discovery and Social Media: Evolving Litigation ChallengesAnthony Diana, Mayer BrownJason Gonzalez, Stroz Friedberg April 14, 2011
Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the 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 whichMayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
E‐DISCOVERY AND SOCIAL MEDIA: EVOLVING LITIGATION CHALLENGES
• AGENDA– What Is Social Media?
– How Can Social Media Be Used in Litigation and Government gInvestigations?
– What Are the Challenges for Proper Preservation and Forensic C ll ti f S i l M di ?Collection of Social Media?
– How Can Social Media Impact a Litigation/Investigation Response Plan?p
– What Are the Likely Future Developments for Social Media and its Use in Litigation/Investigations?
6
WHAT IS SOCIAL MEDIA?
• Social Media
– Interactive
• Types of social media
– Web‐based
– Communications with many
– LinkedInypeople
• Categories of social media– Blogs
– Organization‐sponsored, outwardly‐facing, sites
– Internal sites, blogs, work spaces
– Employees’ personal sitesEmployees personal sites
7
The History Of Social Networks
Niche D ti SitDating Sites
Open CommunitiesCommunities
The User Has AlwaysUser
Homepages
The User Has Always Determined the
Content
8
Social Network Demographics
Twitter 0‐17
18‐24
Usage by Age
MySpace
LinkedIn 25‐34
35‐44
45‐54
55‐64
Social Network Usage By Country Home & Work
CountryTime per Person(hh:mm:ss)
0% 50% 100%
65+
Usage by Gender
(hh:mm:ss)
Average 5:27:33
Italy 6:27:53
Australia 6:25:21
United States 6:02:34
3040506070
Male
Usage by GenderUnited Kingdom 5:50:56
Spain 4:50:49
Brazil 4:27:54
France 4:12:01
0102030
Female Germany 3:47:24
Switzerland 3:26:00
Japan 2:37:07Source: The Nielsen Company
Source: Google Ad Planner
9
WHAT IS SOCIAL MEDIA?
• Why so powerful?– Reach– CredibilityCredibility
• Nielsen study found that 70% of internet users trust online recommendations
– InteractivityInteractivity– Speed and ease of use– Type of information available
• Digital word‐of‐mouth marketing is expected to top $3 billion by 2013y
10
HOW CAN SOCIAL MEDIA BE USED IN LITIGATION AND GOVERNMENT INVESTIGATIONS?
• Sponsored External SitesEvidence of communications with customers– Evidence of communications with customers
• False Advertising Claims
• Securities Fraud Claims
• “Records” for regulatory purposes
– Evidence relating to employees or potential employees
• Employment‐related litigation
• Employment decisions
– Evidence of an Organization’s Self‐Image
• Themes or narrative
• Punitive damages
11
HOW CAN SOCIAL MEDIA BE USED IN LITIGATION AND GOVERNMENT INVESTIGATIONS?
• Internal SitesEvidence of communications with and among employees– Evidence of communications with and among employees
• Employment litigation (discrimination, workers comp, hiring and firing decisions, etc.)
• State of mind: intent, fraud, negligence, conspiracy
• Admissions
12
HOW CAN SOCIAL MEDIA BE USED IN LITIGATION AND GOVERNMENT INVESTIGATIONS?
• Personal Sites– Evidence of time and place
• Criminal cases
– Evidence of actions
• Divorce
• Employment
– Evidence of communications
• Employment litigation
• State of mind: intent, fraud, negligence, conspiracy
• Admissions
– Evidence of bias
• Jury Section 13
Taxonomy Of Data
1• Service Data: what you provide (name, age, credit card #)
2• Disclosed Data: what you post (updates, tweets, photos)
E t t d D t h t t th l ’3 • Entrusted Data: what you post on other people’s pages
• Incidental Data: what others post about you4
Incidental Data: what others post about you
5• Behavioral Data: info about your friends, likes, habits
5
6• Derived Data: algorithmic inferences about you
6Schneier, Bruce. “A Taxonomy of Social Networking Data.” IEEE Security & Privacy. July/August 2010.
14
The Big Three
Li k t Oth ULinks to Other Users
Public Messages
P i MPrivate Messages
Chat
hPhotos
Biographical Information
Affiliations
File Sharing
Geolocation
15
Geolocation
16
Geolocation Considerations
Approximate LocationsC b 300•Can be over 300 meters away
Easily Falsifiedy•Requires limited coding
You are Here …?
17
Investigating Anonymous Comments Traditional Technique of Following the Subpoena Chain
Web
Traditional Technique of Following the Subpoena Chain
Web Forum ISP Internet
Subscribers
Id ifi bl A h EIdentifiable Accounts that Escape Anonymizers
18
Identification of Evidence
Online PreservationPreservation
Desktop and L t
Subpoenas Laptopsto Sites
Mobile Phones
Computer Memory Phones
Search Engine C h
Memory
Caches
19
Evidence Gathering
Twitter Linked‐In FacebookHTML
YouTube/• Full Featured
API• HTML Capture
• Check for Dynamic
• HTML capture
• A/V Capture
• A/V Capture
• Custom ScriptsDynamic
ContentScripts
20
Evidence Gathering From Hard Drives
File carving for “text”:” and }]}
Searching for UIDs
Si K ’ E S i tSimon Key’s EnScript
Internet Evidence FinderInternet Evidence Finder
21
Evidence Gathering From Smartphones
Links to Facebook
Photographs FacebookUIDs
FacebookiPhoneDatabase
Friends’ First & Last Names
UIDs
Names
AppDomain‐com.facebook.Facebook‐Documents/friends.db22
Authenticating Under 901(a)
“The requirement of authentication or identificationditi d t t d i ibilitas a condition precedent to admissibility
is satisfied by evidence sufficientto support a finding that the matter in question
is what its proponent claims.”
23
Laying A Foundation For Authentication
• Trace originating IP back to subject’s computer
• Obtain subscriber information for the subject account
• Tie sent items to a 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 the account• Party to a communication testifies as to authenticity
24
The Right To Privacy Settings
Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010)
Employer sought to make use of messages on Facebook, MySpace and other sites from the employee about the employer. Federal judge ruled that one to one messages are considered private and that “wall postings” may be considered private depending on the privacy settings. Since Crispin’s privacy p y g p p ysettings were set to allow only friends to view his postings, they are considered as private as email. The court used the 1986 law, the Electronic Communications
“Old electronic communications laws mixed with cutting edge electronic communication on social networking sites mean that individual judges ,
Privacy Act, to determine the privacy implications of the messages. The decision required the judge to place current technology into a 1980s
j ghave wide leeway in determining what online is private and what’s
not.”Hill, Kashmir. “Do Your Social Networking Privacy Settings Matter If You Get Sued?” Forbes com blogs: The Not So Private Parts 27current technology into a 1980s
framework of digital communications. If You Get Sued? Forbes.com blogs: The Not‐So Private Parts. 27 Sept. 2010.
25
The Right To Privacy Settings
Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010)
Romano fell off a Steelcase Inc. office chair and claimed injuries that prevented her from work and leisure activities. Information publicallyprevented her from work and leisure activities. Information publicallyavailable on social networking sites countered statements made by Romano. Defendant, Steelcase Inc., sought to discover messages and postings from Facebook and MySpace. Romano responded that those communications were protected as they were private. The Judge ruled that “Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense f ” ( )of the action.” Present and historical (deleted) messages were
deemed discoverable.
26
How Can Social Media Impact A Litigation/Investigation Response Plan?g / g p
• Controlling the information
– Creation and implementation of social media policy
• External‐sponsored, internal and personal
C i i h l i• Consistent with regulations
– FINRA Guidance on Blogs and Social Networking Web Sites (Jan 2010)
– FDA call for Comments: Promotion of FDA‐Regulated MedicalFDA call for Comments: Promotion of FDA Regulated Medical Products Using the Internet and Social Media Tools (Sept 2009)
– SEC Release No. 34‐58288
• Consistent with privacy concerns
• Need input from Legal, Compliance, Information Security, Records Management, Human Resources, Marketing and Business
27
How Can Social Media Impact A Litigation/Investigation Response Plan?g / g p
• Controlling the information
– Enforcement and monitoring
• Effective procedures
h l• Technology
• Consequences for breach of policies
28
How Can Social Media Impact A Litigation/Investigation Response Plan?g / g p
• Develop a legal hold plan that includes social media
– Guidelines for when to preserve social media sites
• Reasonably anticipate litigation/filing of complaint/investigation
l• Relevance
• Evergreen holds (newly created modifications to sites)
• Personal sitesPersonal sites
– Privacy concerns
– Procedures for preserving social media sites
• Snapshots and backups
• Notice to third‐party providers
• Control over employees
29
How Can Social Media Impact A Litigation/Investigation Response Plan?g / g p
• Collection and production of social media
– Challenges and burdens
• Lack of legal guidance
L k f h i l• Lack of technical support
– Indexing
– SearchingSearching
– “Forensic collections”
• Difficulties in reviewing for relevance
• Privacy issues with personal sites—limiting collection to relevant information
30
What Are The Likely Future Developments For Social Media And Its Use In Litigation/Investigations?g / g
• Key source of evidence in all types of litigations and investigationsinvestigations
• Law will always be a step behind technology—so increased legal risklegal risk
• Technology developed to help with monitoring, compliance preservation and productioncompliance, preservation and production
• Privacy laws and information security, particularly when involving foreign data becoming more important ininvolving foreign data, becoming more important in litigations and investigations
31
Contact Information
Anthony DianaAnthony DianaMayer Brown [email protected]
Jason GonzalezStroz Friedberg [email protected]
32
