Social Media and E-discovery or: How I learned to Stop Worrying and Love Digital Ephemera

Transcript:

Operator: [0:10] Ladies and gentlemen, we are about to begin. Angela, please go ahead.

Angela Navarro: [0:16] Thank you. Hello, everyone. My name is Angela Navarro, and welcome to today's webcast titled "Social Media and E-Discovery" or "How I Learned to Stop Worrying and Love Digital Ephemera." This event is brought to you by Insight Council and sponsored by FTI technology.

[0:34] I will help moderate this event, but before we get to the topic, let's get some simple housekeeping items out of the way. If you have a question for one of our speakers, please enter it in the Q&A widget on your console.

[0:47] We will endeavor to answer your questions throughout the presentation, we invite you to ask away. If we don't get to your question, you may receive an email response.

[0:57] In addition, there are some other customizable functions to be aware of. Every window you currently see, from the slide window to the Q and A panel can either be enlarged or collapsed.

[1:08] If you want to change the look and feel of your console, go right ahead. As a reminder, this presentation is being recorded and will be made available to all registrants. The agenda for today will begin with a look at recent social media cases, followed by recommendations for collection methodology.

[1:30] Our speakers will next discuss some of the nuances around reviewing social media data, what to keep in mind for retention and preservation, and we'll conclude by discussing case law considerations and answering questions on our audience. Now, let's meet today's speakers.

[1:48] Shannon Capone Kirk is e-discovery counsel at Ropes and Gray where she focused exclusively on electronic discovery Law. She is a contributing author on two books on e-discovery and has published numerous articles on this topic.

[2:02] Shannon is a member of Suffolk Law School's faculty, and is also a member of the Sedona conference working group on electronic document retention production. Thanks for joining us today, Shannon.

[2:15] Barry is a co-founder of the EDJ group, and the thought leader in e-discovery, records management and content archiving. His previous positions include serving as director of product marketing at Momosa Systems, and as a principal analyst at Forrester Research.

[2:30] Barry has spoken at numerous industry events, and is an active member of both AIM and ARMA. Thanks for joining us, Barry.

Barry Murphy: [2:39] A pleasure.

Angela: [2:41] Thanks. Lastly, we have David Freskos, a director for FTI technology, consulting on best practices for data collection and executing efficient and defensible processes to reduce data volumes during collection and subsequent data processing.

[2:56] He has led the initiative at FTI to provide cloud-based data collection services from social media sites such as Facebook, LinkedIn, and YouTube. David is a member of the High Technology Crime Investigation Association, the Midwest Chapter. Thank you for joining us, Dave.

David Freskos: [3:13] Thank you.

Angela: [3:14] Now let's turn the call over to our first speaker, Barry Murphy. Barry, please go ahead.

Barry: [3:21] Thanks very much. I'm happy to be here. I'm happy to set up this topic of social media and e-discovery, because there's some really great content coming, in terms of some of the case law and implications around that, as well as some real-world, in-the-trenches discussion.

[3:40] The first point I want to make is that social media, and discovery of it, is a fact of life. We're running a survey at "eDiscovery Journal," in our surveys area, on what types of these "social technologies" for collaboration that people utilize at work.

[3:58] What's clear is that it's not just email anymore. People are utilizing more and more collaboration mechanisms like social media. It's not just internal social media platforms that allow collaboration with other employees.

[4:17] It's things that go outside of the company's direct control, whether it's Facebook, LinkedIn, or Twitter for business purposes, which has significant traction, or even employees using social networks on a personal basis, but doing so at work.

[4:35] What's become clear is that social media is a force that's here to stay. One of the points I want to drive home is that, because people are using it, it can no longer be ignored. One of the challenges, however, is that companies are not necessarily prepared to deal with social media.

[4:56] In our survey, we looked first at what types of technologies in the social realm do companies have usage policies for. As one might expect, there is a pretty high rate of usage policies in existence for email. Email has been a discovery eyesore for the better part of 15 years, where companies still struggle.

[5:20] As social media really comes onto the scene, we see a low percentage of companies that have usage policies that are specific to social media. As we'll talk about later, policies are one of the biggest ways that companies can protect themselves when it comes to social media discovery, or at least, start to protect themselves.

[5:44] What we're seeing here is a big lag in social media policy-making. There's an opportunity for companies to get ahead of the curve if they can start to get their policies right. We'll take questions on that, as well as talk about that later, as well.

[5:59] We're also finding in our research that social media is not necessarily on the radar as something that deserves retention policy. Again, the email being much better managed from a retention standpoint, then, we see some of these other social technologies and social networking being very, very low.

[6:21] Don't let these numbers dupe into thinking that it's a good thing to keep in retaining all sorts of social media. I might think we've learned a lot in the email and document management world, but over-preservation, over-retention creates just as much of a problem as does the inability to retain things when needed.

[6:45] This does not necessarily mean that companies need to be proactively archiving social media per se, but that there needs to be a written policy around how long it will be retained or not retained, and how that's going to work or else there's going to be a problem when it comes to e-discovery, because companies won't exactly know how to plan for e-discovery.

[7:09] Actually, this shows in the data, as well. We asked respondents to our survey if they were actually proactively archiving social media, because this archiving initiative, it's how companies have gone down the road of managing high-volume data like email. They could use email archiving. Get it up the production server, get it into a retention repository with a little extra storage management.

[7:36] We're not seeing the same thing happen in social media partially, because there's not a whole lot of prescription around how good stuff should be managed. Companies have learned to email us. They've got reaction. The email 15 years ago was to journal it and that created digital landfill.

[7:54] We're not seeing companies necessarily say, "OK, I'm going to start proactively archiving, managing that stuff." We actually see them wait which is a good indication. Despite that good indication, more companies are maybe a little bit smarter and not as much of a knee-jerk reactive mode to social media.

[8:16] What we don't see them doing, which they need to do, is put a plan in place, a written plan of procedures for how they're going to collect and preserve these technologies [inaudible 0:08:29] when needed.

[8:32] Most organizations know how they're going email. Very few organizations really have a plan for what they're going to do when these other types of content inevitably come up.

[8:42] That's going to lead to the problem that we've had for quite a long time in this industry which is an expensive, overly reactive approach where companies say, "I never knew that I had to do this."

[8:56] A court sanctions them and suddenly, they're left with the most expensive option left to get this data, try to cool it down, try to review it, understand that's there. We're seeing very few organizations express a proactive plan for dealing with this when it comes up.

[9:14] Again, that gets back to this management by policy. If you got a policy that you're not going to retain this and then you have a plan in place for what you're going to do if you need to collect and preserve, you're going to be much better off.

[9:28] Don't fret if you feel like you're behind here, because the reality is that experience with collection and preservation of social media content is still fairly low. There are not a lot of organizations that are necessarily ahead of you if you feel like you haven't addressed it yet.

[9:48] Now is really an opportunity to do it. You're going to hear some real world stories coming up and some legal perspective on this that will help give you some guidance there as well.

[9:59] What I like to talk about when we're looking at managing social media for e-discovery is that there are really three use cases, and two are very similar.

[10:08] You've got the proactive information governance and compliance monitoring scenario, where you are proactively managing, retaining, and archiving this content probably in regards to regulatory requirements, because those are the organizations that we see managing the stuff proactively.

[10:31] As I mentioned, you also have the reactive e-discovery use case, where something comes up and you're told to collect and preserve. That's where we see a lot of organizations behind the eight ball, because they have no plan there.

[10:42] Be very careful to note that very few are going down this proactive use case unless they absolutely have to. They're a serial litigant or the regulatory agencies help if they have to. Having that plan in place, to bring it up when you need to is what's going to be very, very important...

[11:01] You look out at the market. You say, "OK, how am I going to do this when the time comes?" There's four main collection mechanism for social media.

[11:11] The first one's very simple. It's a web crawl. It's a program that goes out and creates a copy of a page. You're going to store it as a static web page. You're going to be able to index that content.

[11:25] It's very simple but, at the same time, it's a point in time capture so it's not dynamically updating all the time. There's no compliant capture the way that journaling would capture everything.

[11:39] It may work in certain situations and on a case-by-case basis, but it's not likely to be the long term solution to your social media collection and preservation needs, much like a screenshot where a program's going to go take an image to be converted to a PDF to be stored in an archive or some kind of preservation repository.

[12:02] Again, it's simple but it's not capturing that full context. There's no metadata capture. You've got to really work to prove the authenticity. You've got to go through some deeper processing of that image for indexing and searchability.

[12:18] Again, it may fit certain situations. You'll hear more about authenticity later. But not likely a long term solution. You'll get into the more advanced kind of things, where you have these application programming interfaces, where you run a direct integration to a publisher like Facebook or LinkedIn.

[12:36] This allows a much more full, granular capture, as well as the ability to capture things that people are doing off network where you might not otherwise see them, because you're getting it direct from the publisher.

[12:49] But it does require a lot of management. It's a very complex deployment. Therefore, it's usually something where a company is told, "You have to be able to capture everything."

[13:03] There's a lot of solutions that are rising up around this that can get various social media content. Then, there's also a proxy mechanism, where you essentially have an employee go through a proxy server.

[13:18] They don't give you their password and user name, but they have to log into the proxy server so that you can capture all that on network activity. You also have to think about what happens when they're not going through your network and that proxy server. Again, that has complex configurations.

[13:34] What we're seeing is that, for those with advanced requirements, there's some combination of the proxy and API approach that they tend to employ. Other reactive mechanisms can still work on a case by case basis.

[13:47] I wouldn't say throw screenshoting and web crawling out with the bathwater, but you need to be sure of what's my use case and what's required here. And then, what you also hear from Shannon is, "How do I go about authentication this stuff when the time comes?"

[14:06] Let me turn it over to Dave to talk more about, "What does this look like in the real world? What's really happening?

David: [14:17] Thanks, Barry. To follow up on an overview of the market, I'd like to focus in on finding some color on the social media throughout the [inaudible 0:14:25] focusing on the preservation and review portion.

[14:28] I'm also going to walk through a case study that illustrates how social media can play a large role in corporate litigation and some of the challenges that it presents.

[14:39] As Barry pointed out, social media is not yet a primary concern for lit support and e-discovery professionals. However, for a number of reasons, we should see that beginning to change.

[14:48] The first reason, companies are rapidly changing the way in which they do business. Mobile devices have shifted a lot of business activity outside of a cubicle or a boardroom. Social media provides the fastest and easiest way for businesses to reach the largest number of its customers.

[15:04] The obvious answer to why social media needs to be preserved is that it has become a prevalent way to communicate. If you're going to collect from the traditional forms of communication there needs to be at least a discussion about social media and how it factors into the case.

[15:18] The big three social media sites, those being LinkedIn, Facebook, and Twitter, all provide functions similar to email. This allows users to send one-to-one or one to a million messages very easily.

[15:30] Companies are now using these advances to directly promote sales and distribute the benefits of their products and services. LinkedIn and also Facebook are used heavily as recruiting tools. This increases the need for social media collection in any type of employment dispute or litigation.

[15:48] Also, many end users are well aware of the fact that their corporate computers and email accounts may be monitored and can be searched at any time. They now look to these social media sites as a way to send messages outside their corporate email environment.

[16:01] This forces lit support and e-discovery professionals to consider social media preservation in addition to any review or investigation involving corporate email.

[16:11] Finally, the data from these sites is out in the public domain. Therefore, it is difficult to know exactly who can view these posts on these sites. Opposing counsel may have access to the data that is potentially relevant to your case.

[16:25] With that being the case, it increases the importance of preserving, as quickly as possible, the other side would have the ability to observe any deletions or changes that were made to the posts.

[16:39] A great example of the current need to preserve social media came from a recent case involving a direct sales company from the jewelry business. A high level executive resigned and joined a direct competitor.

[16:51] Soon thereafter, a number of their former colleagues followed the executive to that competitor. The original company then filed a lawsuit alleging a violation of a non-compete for non- [inaudible 0:17:01] agreement.

[17:04] The company specializing in custom jewelry and frequently hosted jewelry parties to display and sell all their products. Their primary means of communication is through social media to set up these jewelry parties, and also, highlight the quality of their merchandise. These communications are often used in place of traditional email.

[17:25] FTI was tasked with collecting social media accounts for parties involved along with mobile devices and traditional sources of ESI. FTI was able to work with custodians to obtain their log on credentials. Once FTI was able to obtain the log on credentials, the accounts were accessible and all the metadata and posts were preserved.

[17:47] FTI's collection tools use a combination of the API and web crawl mechanisms explained earlier to uniquely preserve the accounts on a post-by-post basis. The ability to obtain log in credentials allowed FTI to preserve all items that the user could view while logged in.

[18:04] Collection done on a post by post basis also allowed FTI to preserve individual metadata associated with each post. Each post could be assigned to a specific custodian and loaded into FTI's document review platform.

[18:19] The benefits of preserving the data in this fashion could really be seen once the data is ready to be reviewed. With the presence of such detailed metadata, FTI was able to apply specific dates, and also, keywords to the data to narrow down the data set. It allowed for a quick and targeted search of communications between the specific employees in question.

[18:44] As technology continues to evolve, there are a number of challenges faced when trying to preserve social media sites. The first challenge for IT and e-discovery professionals, the data is not housed within the four walls of the organization. Preservation of these sites usually involves having the custodians involved, and going out to the various sites in question.

[19:05] In a similar vein, even if the custodians do provide the user name and password, a number of these sites now require a second form of authentication. Facebook, most notably will require you to enter a pin number sent to you via either SMS or email, if it determines the user is trying to access their account from an unrecognized mobile device or computer.

[19:26] During early engagements regarding social media collections, we learned of the hard way of these secondary authentications and had to re-involve the custodian. While I've highlighted how social media use is rapidly increasing for businesses, it is still primarily used for personal activity.

[19:45] When collecting an entire social media account, you may find that a large amount of personal data is completely irrelevant to the matter at hand. There are numerous collection tools that use only the web crawl and screen capture approach, and may preserve an account as one large HTML or PDF file.

[20:02] This would force attorneys on the case to read through a lot of unnecessary posts, and add significant time and redaction's when it comes time to produce.

[20:09] Breaking down the accounts on a post by post basis allows non-responsive personal data to be easily discarded and ignored. Another challenge faced by e-discovery professionals is a lack of typical documents or data types when it comes to social media. My colleague likes to use the example that there are two different types of social media users, stalkers and posters.

[20:32] Stalkers tend to follow the goings-on of people they are connected with, and not post a lot of content to their account. These users will likely have less data to collect.

[20:40] Conversely, there are users who post links, photos and other multimedia links quite frequently. These users will often have a larger data set to preserve.

[20:49] What type of user you are facing is usually difficult to predict, and therefore, can hinder the collection time estimates along with estimates of total data size.

[21:00] As I touched on earlier, the fact that data is in the public domain encourages the preservation of this data as really in the proceedings as possible. The lack of knowing who can see what magnifies the importance of a thorough preservation.

[21:15] Finally, the last challenge we face was how to seamlessly integrate the social media data into traditional document review and production.

[21:22] As discussed, this was significantly mitigated by the use of the hybrid collection method, focusing on the individual posts. To summarize a few key takeaways, it is important to preserve individual data types and the corresponding meta data.

[21:38] As exemplified in the case study, this greatly reduces the burden of the subsequent downstream work. Avoiding collection methods that produce a single web page or PDF is preferred, if possible. By securing the individual posts, you open a wide range of pulling options that are often applied to traditional ESI.

[21:56] Again, the ability to apply date ranges and key words while filtering on the social media related fields tend to allow for irrelevant data to be a discarded and data sets to be drastically reduced.

[22:06] Smaller data sets will also simply their view and allow you to hone in on relevant data. The ability to have the social media data in the same review environment as traditional ESI allows for reduction in time and money spent on coding, redaction and production.

[22:24] On with a quick visual representation, I'm not sure if there is any fellow IU alumni out there. Here is an example of a post from the Indiana University athletic site, as it would be viewed in Facebook.

[22:37] As you know, this is a large image accompanied on the right side by the name of the account, and then directly under that, there is the date that the post was loaded up to Facebook.

[22:48] Below that, there is a caption of the photo which has tagged some specific individual that the account wanted to highlight. Under that, you can see there's 496 people have liked this post, and right below that, it documents the number of comments. On Facebook, it shows about six or seven, and there are 11 more hidden that you can view if you wanted to click on that link.

[23:14] Given that, I will take you now into how this post would look in a managed review environment. FTI's managed review environment, Ringtail, displays these posts in ascension.

[23:26] As you can see, a lot of the data that was from the post transformed directly into the review. You have the title of the account on top. You have the caption right above a thumbnail version of the photo.

[23:40] Below that, you have the date and time stamp, followed by the likes. You can see that the numbers match, 496 likes, and below, you can see that all 17 comments are listed. If you scroll down, all the comments would be listed, and also the original, larger version of the photo is also viewable.

[24:10] I'd also like to point out on the right side, a list of all the meta data fields that were preserved during preservation, and also, made it into review.

[24:20] Meta data fields such as account name, item type and date allow for a lot of in-depth analytics and specialized calling to again help reduce the data size. With that, I want to pass it over to Shannon, and she's going to talk about case law considerations.

Shannon Capone Kirk: [24:37] Thank you. That was really helpful, I was pleased to see the practical application of things.

[24:44] It's good I was on mute, because I was laughing at the stalkers versus users designations, which I think is actually funny, because it's true. I'm going to try to get in the case law considerations, some of the more recent case law.

[25:02] I'm not necessarily going to follow my slides, and I am going to mention some new cases that I don't have on these slides, I'll be sure to mention the whole case name.

[25:15] First, I want to hit preservation. I think at this point, in 2013, it should be painfully obvious that obviously social media is relevant or can be relevant to any given case and should be preserved.

[25:33] If it's relevant, of course, to a claim or a defense. The issue of privacy, I know that that comes up quite a bit or it has in the past, in relation to social media, in my mind is a non-issue.

[25:46] In other words, if the content of social media is germane to a case, then, it's discoverable. If you are in the civil context, you should be able to obtain that information through a document request, simple as that.

[26:01] We're going to go through some cases, however, that is on a different route. Now obviously, if you try to get the content directly from Facebook, MySpace or some other social media site, you're going to bump up against the Stored Communications Act if you don't have a consent.

[26:20] I'm not going to really get into that too much today, because I think that that's old news that we've gone through and hashed over in other webcasts or whatnot.

[26:32] What I'm going to talk about first is preservation. Let's talk about Facebook, because that's usually the number one area that we see case law in. I've detected through the case law that there was three different ways that content on Facebook can be either changed or altered.

[26:52] The first is obvious, it's simply changing pictures or powers or updating status, right? You might delete pictures, but there may not be a preservation concern so long as the actual picture is preserved elsewhere.

[27:09] It all depends, of course, on what is needed for the case. If the case, for example, requires knowledge of how that picture appeared and when, in the social media say, then, taking it down may be spoliation.

[27:24] The next is deleting an account. As I understand it, if you delete an account, that content is usually gone. Now, there is some indication that Facebook may save some of that information on servers just for technical reasons, but for all practical purposes, if an account is deleted, then that content is gone.

[27:46] That is different from deactivating the account, and there's been cases on those deleting and deactivating. Deactivating accounts should not get rid of the content, because users should be permitted to reactivate accounts, and they have in fact, and we'll talk about one case. It's important to understand those three distinctions, and why is that?

[28:10] If we're going into a case and we want to preserve our own client social media, we want to know, are we in the kind of case that requires us to preserve static what this site looks like, how it evolves, and how it may change at any given moment?

[28:28] At any given moment, I need to know what technical solutions I need to take in order to do that. If we are talking about an instance where it's really just a particular picture on a Facebook page or MySpace, maybe there's something less that we can do as counsel.

[28:45] By the other side of the coin is, if we want an opposing party to preserve social media, we're going to want to know. Do we want to make sure they never change any single thing, not a word?

[28:58] I want to make sure I articulate that to opposing counsel. Do I want to make sure they don't delete their account, or deactivate their account. I want to know which I need for my case.

[29:12] Now, there's a tension, of course, in the case law about what is required for preservation in terms of modifying anything, because we all know that profiles on Facebook change constantly.

[29:26] People change their profile pictures, people update their statuses, et cetera. Are we in a state of law that requires a complete freeze on everything? I was thinking about this and I thought, "Well, the best way to consider this, of course, is to look at the cases in the extreme."

[29:42] On the one end of the spectrum, we have a case I want to talk about, Lester v. Allied, where we have intentional spoliation of Facebook content.

[29:50] On the other end of the spectrum, we have innocent deletion of profile pages that is explainable and not prejudicial. Let's talk about Lester v. Allied Concrete, this is a case that was just recently finally resolved in a Virginia Appellate Court, January 2013.

[30:13] Let me give you a little bit of the history, because it's interesting. And again, this is one at the other end of the spectrum, the one where there is intentional spoliation. On March 25th, 2009, the defendants send the plaintiff a discovery request for Facebook content.

[30:31] Now, this is a case where there's a young couple driving along in their car on the way to work, and a concrete truck is speeding down the road, veers into their lane, kills the young woman in the car. This is the case resulting from that where the husband and her parents bring laws of consortium, et cetera kind of claims.

[30:55] The defendants bring a request for Facebook content. Attached to that request is a picture that Allied previously got, Allied being the defendant, from the plaintiff, the husband's Facebook page, where he has a beer in one hand, and he's wearing a shirt that says, "I Heart Hot Moms."

[31:16] They're saying, "We want more. We think that that goes toward the laws of consortium claim." The very next morning after receiving that request, Lester, the plaintiff's lawyer, tells Lester through his paralegal. By the way, this is through an email to "clean up his Facebook page," because "we don't want any blow-ups of this stuff at trial."

[31:43] The paralegal also said that there were some "other pics that should be deleted." In another follow-up email, the paralegal reiterates this request to clean up Facebook and, "WE DO NOT," in all caps, "WANT BLOWUPS OF OTHER PICTURES AT TRIAL, SO PLEASE, PLEASE CLEAN UP YOUR FACEBOOK AND MySpace."

[32:03] The lawyer later refers to this particular email as a, "stink bomb." Then, about a month later, in April 2009, the plaintiff Lester says that he's deleted his Facebook page.

[32:19] Now, he uses that word, deleted. Remember I said there's that distinction, and I want to point it out, because later he reactivates his account.

[32:28] I'm thinking really what he did was deactivate his account. In any event, the next day the lawyer signs an answer to the discovery request stating the following. "I do not have a Facebook page on the date this is signed, April 15th, 2009."

[32:46] Of course, the defense goes bananas over this. This is obviously muckity muck, they know the Facebook page, and he's just being very literal, playing games.

[32:56] A month later, the plaintiff reactivates and the paralegal prints some thumbnails of the pictures, and the plaintiff deletes 16 pictures. Obviously, because he was told to clean up his Facebook page.

[33:12] Then, he later testifies that he never deactivated his Facebook account. The defendant's subpoena Facebook, and through an expert, they show that in fact, the plaintiff had deleted 16 photographs.

[33:30] Lo and behold, there is a motion for sanctions, and the lawyer was personally sanctioned $542,000, and the plaintiff was sanctioned $180,000, and also, an adverse inference construction was given at trial.

[33:48] Now, around the time that this came out, there were some reports that came out and said that the resulting jury award, which was nearly $7 million. It's somewhere around there, but $7 million. That that jury award was reduced to around between $2 and $3 million because of this sanctionable conduct.

[34:10] However, if you read the appellate court decision from January 2013, the appellate court pegs that reduction by the trial court on the trial court's belief that the jury verdict was driven by passion, and was not objective.

[34:26] And so, the appellate court reinstates that jury award. It is unclear, because there were reports at the time that the lawyer himself was referred to the Virginia state Bar for association, and I'm not sure that that occurred.

[34:40] The whole point of this being, however, that there is no doubt that there were about $700,000 worth of sanctions for the misconduct with the Facebook pages. At the other extreme, there is this explainable modification of Facebook accounts, and that's in the Kati roll case. Katiroll v Kati Roll, district of New Jersey, August 2011.

[35:05] I had to look up what a Kati roll was, I didn't know. Apparently this is a trademark, trade dress case and it's two companies that sell this food product called a Kati roll. I went on Wikipedia, it says that it's basically any kind of Italian flat bread that has something rolled up in the middle, it looks pretty good.

[35:26] Regardless, there's a case about it. The plaintiff comes and complains that the individual defendants failed to preserve pictures on Facebook before taking them down, these offensive trademark, trade dress pictures.

[35:43] They took them down, and they didn't save them before taking them down from Facebook. However, the defendant said, "You told us to take them down, so that's why we took them down."

[35:57] Anyhow, there's still a motion for sanctions pending before the district of New Jersey, and they apply an interesting take on the factor test for sanctions. Now, those factors are as follows. Number one, that the content is in the party's control. Here, that was satisfied, the Facebook page was in the defendant's control.

[36:17] Two, that there was actual suppression of evidence. Here, that's the factor that we are going to talk about. Three, that the information was relevant to claims and defenses, that was satisfied in this case, and four, that the information was reasonably foreseeable to the discoverables, and that discussed a little bit in the opinion.

[36:35] With respect to factor two that there has to be actual suppression of evidence, the court points out that there is a split on the level of culpability that is required for that particular factor. And the court says, "The best rule is to use the amount of prejudice to the opposing party to determine the degree of fault required."

[36:57] And here, where there is substantial prejudice to the opposing party, negligence may be sufficient to warrant a spoliation inference, but where there is minimal prejudice, intentional conduct is required.

[37:12] And that's important. Where there is minimal prejudice, a lot of times, and this goes back to my original question, which is, "OK, are we in a state where we would have to totally freeze anything on Facebook or MySpace?"

[37:28] Maybe not. Maybe if a profile picture changes, or somebody is allowed to continue to update their status, is the other side truly prejudiced if that picture otherwise remains. I don't know, it's something to consider on a case-by-case basis. This is how this court applied it.

[37:49] The court looked at what happened here, and in this case, the Facebook pages yes, were taken down, but only because of the plaintiffs take-down request. A sanction would be unjust.

[38:02] As to the foreseeability of the discoverability of the evidence, the change of a profile picture on Facebook is a common occurrence, and the court notes, users often change their profile weekly.

[38:14] Therefore, it's a tendency of litigation. Thus, it would not be immediately clear that changing his profile would undermine discoverable evidence. Yet, although it was unintentional, there was still, the loss of the picture was, "somewhat prejudicial."

[38:37] What does the court do? The court curative by requiring defendant Katy Roll to re-create the pages, which it did so the plaintiff could then take a copy of those pages and go on with the case.

[38:50] Now, it looks like I'm running out of time. I wanted to get into a new case that came out in March of 2013 called Gatto v. United Airlines. I would go and look that up, because this goes into, again, that difference between permanent deletion and deactivation of Facebook accounts.

Angela: [39:18] Shannon, you know what? I think we have a few more minutes, if you want to continue with that case before we go into question-and-answer time, please go ahead.

Shannon: [39:26] If it's OK, I'm going to skip it, and I'm going to go down to authentication, because my previous colleague hinted that I would talk about authentication. What I want to get into, make sure I cover that here is real quick is the Tienda v. State case, February 2012, Court of Criminal Appeals in Texas.

[39:49] This builds upon the Griffin v. Maryland case, and it talks about and addresses that issue of, how do I authenticate social media evidence if the poster himself or herself does not authenticate it? How much circumstantial evidence do I need to have?

[40:10] I want to read to you, in this case, exactly what the court looked at. Here, we're talking about a gang murder. People who were out, driving around, there's a lot of shootings, someone gets killed, and now there is this gentleman who gets 35 years in jail. This is what the court says.

[40:28] According to the subscriber reports, two of the MySpace accounts were created by a "Ron Mr. T," and by the third, by a "Smiley Face," which is the appellants' widely known nickname.

[40:46] The account holder purported to live in, "D-Town," or Dallas, and registered the accounts with, and there is a name of an account, or, "Smiley," and then a bad word, at whatever the email account was.

[41:02] The state introduced multiple photos, "tagged" to those accounts because the person who appeared in the pictures at least resembled the appellant. The person is shown displaying gang affiliated tattoos, and making gang related gestures with his hands. There is all of this circumstantial evidence that the court was looking at, and then, the court considered even more.

[41:24] The main profile pages of the MySpace accounts contained "boastings," "you ain't blastin, you ain't lastin." And "I live to stay fresh, I kill to stay rich." Two exclamation points. And then, under the heading, "RIP David Valdez," who was the victim, was failing to a song that was played at his funeral.

[41:47] And then, there was another music link posted to one of the profiles with a song titled, "I still kill." There's all of this circumstantial evidence, and then, the court goes on and lists numerous instant messages that appeared within MySpace. All of them really tying the defendant to the murder. Some of them were such as, "What goes around comes around," and et cetera.

[42:16] The defendant says that it was wrong to allow any of this to be admitted at his trial, he should be granted a new trial, and he points to the state's failure to prove that the accounts were created by him.

[42:30] That they could have used some kind of technological or expert evidence, and they could have used, or traced the account by IP address listed in the subscriber report to the appellants' personal computer, and they did not do any of that.

[42:44] Now, it's interesting because the defendant makes that argument, and it comes after the Griffin v. Maryland case in which that appellate court said those are some of the things that you should probably do to authenticate social media.

[43:00] Now, it wasn't an exclusive list of things to do. This court, the Texas court says, "Yeah, we see what Maryland says, and we understand it, but that wasn't an exclusive list."

[43:13] And in that case, the prosecution really did the minimal amount to try to show authentication. Therefore, this case is different, because there's so much, we have so much circumstantial evidence on these pages, we think it's enough.

[43:29] We think it was appropriate to send this to the jury. And the court says, "I'm going to read you this final quote to end my talk here, because this, to me, is really the practicality." I like this opinion, because practically speaking, everybody knows that these were his profile pages.

[43:52] The court essentially says that, and this is what it says, "It is, of course, within the realm of possibility that the appellant was the victim of some elaborate and ongoing conspiracy, conceivably some unknown malefactors somehow stole the appellants' numerous self-portrait photographs, concocted boastful messages about David Valdez's murder and the circumstances at that shooting, and it was aware of the music play that Valdez's funeral, knew when the appellant was released on pre-trial bond with electronic monitoring."

[44:26] And referred to that year long event, along with stealing the photograph of the grinning appellant, lounging in his chair, while wearing his ankle monitor.

[44:34] But this is an alternate scenario whose likelihood and weight, the jury is entitled to assess once the state has produced a prima fascia showing that it was the appellant, not some unidentified conspirators or fraud artists who created and maintained these MySpace pages."

[44:56] In other words, where we are right now with social media and authentication is, I think where we've been with evidentiary admissibility case law all along, and that is it's a case-by-case analysis, and circumstantial evidence will be and can be enough to authenticate information for trial.

[45:20] Anyhow, I guess I'll end here. There's so much social media case law out there now, and look for an article I'm going to have coming out where I'm going to look at all of the social media cases that simply just address the issue of the smiley face.

[45:38] That there's that much case law that I can do an article just on that, alone. Anyway, thank you everybody. This was fun. I think we're going to do some questions now, right?

Angela: [45:49] Yeah, thank you, Shannon. Before we move into question and answer, again you can ask questions using the Q and A tab on your console. We're going to back over to Barry Murphy, who will conclude with a couple recommendations on this topic. Barry?

Barry: [46:03] Thanks. I'll go into just a couple of broad recommendations, because I know you've heard a lot here, and there's some good content. The first thing, as we saw at the beginning, most companies don't have usage policies around social media, and that's a really important place to start.

[46:24] Because you want to guide employees on to how you're going to use social media, if you're going to allow them to, and you need to balance that with what you have the wherewithal to not allow them to do. What we've seen from a good policy perspective is, the more detail that you can get, the better off you're going to be.

[46:44] There are some cases that the National Labor Relations Board has ruled on around whether policies are good or bad, or meet their rules. There is some guidance on creating policies there. Having that policy would then allow you to determine, how are you going to do collection and preservation as it comes up.

[47:06] You need to understand your use case. Are you going to be proactively monitoring and archiving social media, or are you going to be reactively collecting and preserving it?

[47:20] What you need to be able to do is make sure that it doesn't cause you an e-discovery headache down the road, and that you don't wind up not being able to call that data down, because it took so long to collect it.

[47:33] And that you don't run into those kinds of things that raise the cost significantly. And realize, too, that there is going to be rapid change, we can talk ad nauseum about Facebook, LinkedIn, and Twitter, and those are only three of the social networks that are out there. There's all sorts of new ones with GPS based data, you've got FourSquare, you've got all these other social networks.

[48:00] Facebook came on the scene very quickly, Twitter came on the scene very quickly and all of a sudden, they are high-volume. You need to keep up with the rapid change there, and understand how different collection mechanisms are going to be able to work for various situations.

[48:17] I think the key here is to be pragmatic and not to over-react to social media, but to make sure it's on your radar. Our data's showing that it simply isn't there yet, and that's going to create a problem, I think it's a good time to start doing something about it.

Angela: [48:36] Thanks, Barry. Again, you can ask your questions using the Q and A tab on your console. We already have a few that have come in throughout the presentation.

[48:47] The first question, we'll hand it over to Shannon. It's on the topic of preservation. which I know Barry just touched on. But the question, Shannon, reads "What is the legal obligation to preserve instant messages, if it's possible but difficult to preserve, unlike email, must it be stored?"

Shannon: [49:06] Thank you, that's a great question, and I have looked into that a few times now for a couple of clients.

[49:12] Yes, there's absolutely an obligation to preserve instant messages if the content of the instant messages is driven to the claims or defenses in the case. Courts have not been to sympathetic to the fact that it is difficult to preserve instant messages.

[49:33] One case I like to point to is not an instant message, although there are several instant messaging cases, by the way, that do say, "Yes, you need to preserve instant messages, you need to find a way to preserve them if they're germane to the case."

[49:47] One case that I like to point to on this ephemeral data issue is, of course, the Columbia Pictures case where the court ordered RAM was something that was relevant to the case, and therefore, had to be preserved.

[50:06] I know that practical solutions to that that I've tried to do in my own cases is, I tried to immediately determine, "OK, are we really dealing with a case here that is dealing with the preservation of instant messages on an ongoing basis," right?

[50:26] Because if you get into a case and you weren't already logging IM for some reason, and a lot of companies already log IM for a variety of reasons, but say, the company doesn't. Whatever exists up until this day when your duty to preserve starts, if it's gone, it's gone.

[50:44] Then the question is, "Do I have to preserve going forward?" Is this an evergreen hold, in other words? And if it is, then, what I want to do is I want to say OK, what is the burden?

[50:56] What do I have to do to either start logging now, for everyone, or for certain people? And what do I have to do to ensure that I can do that?

[51:06] In the very least, I want to make sure that my key players, that I talk with them directly as soon as possible and see if, because sometimes, it's on a machine by machine basis.

[51:18] You can't enterprise-wide preserve IM. Sometimes, you want to go to your key players and make sure that they are, in the very least, logging their own IM on their machine.

[51:31] It's wildly different what you do on any given case. The short answer is, yes, if IM has content that is relevant to the case and it exists, it must be preserved. If it exists or is going to be created, then it must be preserved.

Angela: [51:49] Thanks, Shannon. Yeah, seeing some of these questions come in, it's clearly a wide topic. Again, if we are not able to address your question on the call today, we will be following up over email.

[52:01] The next question, I'm going to hand it over to David Freskos to start with, and maybe Barry, you can jump in. Dave, the question reads, "Are the days of trying to get data directly from the social media site itself over?"

[52:13] There was lots of conversation years ago and even tips published by the federal government, but it was incredibly cumbersome. In your experience, David, what have you seen?

David: [52:28] If you can go directly to the sites, whether it be Facebook, Twitter or LinkedIn, I know from my experience, they are not real anxious to hand over any data for their users.

[52:39] They're very protective of that, and keeping that privacy. We really have had any success in going that route. There are potentially subpoenas that could be put in place to obtain that data, and obviously, special requests can be made for that data to be obtained directly from like a Facebook through law enforcement and that nature.

[53:05] As far as our concerns, we've rarely gone down that path, because we know how unlikely they are to just hand it over to us.

Angela: [53:15] I see, thanks, Dave. We have time for a few more questions. Barry, this next one we'll start with you. The question reads, "What concerns do you have around using employee's personal social media sites as avenues to promote business?"

Barry: [53:34] I don't know that I necessarily see concerns other than that it may broaden your preservation obligations.

[53:43] If your employees are doing something work related through their personal social media, then, it may be something that becomes discoverable. It may be something else that you have to account for on your data map and start tracking, which becomes more complex and widens the net a bit.

[54:06] But on the other hand, especially say, in an insurance sales business, a social media is just an illustration of how those personal networks can expand and increase a sales target.

[54:23] It's a good example of where social media impacts business in a positive way. If something impacts business in a positive way, you shouldn't throw it out simply, because it presents a discovery risk.

[54:35] I think the onus is on the organizations or the businesses to say, "OK, Dave Smith is using his LinkedIn account to increase the network that he sells to, we need to be able to go get his LinkedIn messages if the need ever arises.

[54:55] You don't necessarily need to say we need to go archive those, we need to monitor them, but you need to be able to collect it and preserve it as necessary.

[55:03] That may mean having a tool in place, or service in place to do that when it comes up. I don't have a concern, per se, unless it's something that's not helping the business, in which case you might want to try to use policy to forbid that kind of usage.

Angela: [55:20] Sure. On that topic of policy, we have seen a couple more questions come in. We do have time for one last question.

[55:27] I'm glad this one came in, because it follows right into that topic. I think we'll give this one to Shannon. Shannon, it's on the topic of usage policies for social media. Do you have recommendations on where to go for model policies?

Shannon: [55:43] Great question. I wish I had a dollar for every time I get that question, actually.

[55:49] It's a really great question. No, and you may be asking the wrong person. You might talk to another lawyer, and they would say, "Oh sure, go here." I am very anti-model anything, anywhere, especially, if you get it off the Internet.

[56:05] I think that every organization has its own unique things that have to be considered. Granted, there are certain commonalities that we need to consider for any usage policy.

[56:19] The main message for them really is "Don't be a bonehead. Don't go out and put our confidential information out on social media. Don't go showing yourself, if you are a representative or an agent of this company, in a light that is disparaging to the company."

[56:38] The hard part is saying that in a way that is not too broad so that you step on what the National Labor Relations Board has come out with in, I think, two or three different really detailed reports. One of my colleagues here, on this, already pointed out those reports.

[56:57] What I would do, if I was a company, if I was going to have a social media policy...I've done a few of them already, for a couple of different companies...is I would first set my goal. I would first say, "What is it that I really want people to do and not do with respect to social media?"

[57:17] Next, I would also then do an actual study of what's going on out there. I've been to companies where we go and we plug in the name of the company. They'll say to me, "Shannon, we just have one site. We just have one site on Facebook. We're not concerned."

[57:32] Then I sit with them. Actually, we pull up several different sites where their own sales force or other people have created alternate Facebook sites, using the company's logo. Part of that would probably be something that you would want to bake into your policy.

[57:52] Next, I would give careful read to the National Labor Relations Board reports that have come out, because they've given really specific...try to give some guidelines on "This is bad. This is not bad. This is OK." They go through specific case examples.

[58:09] There's language that we all, all along, have thought, "What's wrong with that? Why is that so wrong?" Saying things like, "It is a violation of company policy to disparage your coworkers in a public forum."

[58:26] I may not be getting that exactly right, but the National Labor Relations Board might say, "Actually, you are curtailing protected speech in the way that you wrote that." I would consider those reports.

[58:40] Whatever my final draft of my policy is, I would absolutely run by an employment lawyer. They know this stuff. They should. That would be my advice on that. I am sorry. I cannot point you to a model because I just am so opposed to model anything. Sorry.

Angela: [59:03] Great.

Shannon: [laughs] [59:03]

Angela: [59:04] Thank you, Shannon. With that, we will have to conclude our Q&A section. Again, if we weren't able to get to your question, we'll be sure to follow up over email. Thank you again to our audience for staying with us for this past hour.

[59:17] Thank you especially to our speakers, Shannon Capone Kirk from Ropes & Gray, Barry Murphy from The eDJ Group, and David Freskos from FTI Technology. We appreciate you sharing your expertise. This presentation has now concluded. Thank you and have a great day.

[59:31] [silence]