Archive for May, 2012

A guest-post by Michelle Sherman

Companies are on social media. They are interacting and connecting with customers through Facebook, Twitter and blogs. In a 2010 study, numbers on the conservative side show that 65 percent of Fortune Global 100 companies have active Twitter accounts, and 54 percent have Facebook fan pages. One third of these companies have a blog. This is how companies are doing business today. And, with this online presence comes legal obligations to capture and save these communications.

These obligations can seem daunting, but when broken into four areas of action, or the four corners of social media and eDiscovery, any organization should be able to meet this new challenge.

1.  Discovery Rules Apply To Social Media Activity

These communications and online activity should be thought of as an extension of “electronically stored information” (“ESI”) and the discovery rules that apply when a company is in a legal dispute that would trigger a duty to preserve company emails and electronic documents. When the Federal Rules of Civil Procedure were amended in 2006 to include ESI, the term was “intended to be read expansively to include all current and future electronic storage mediums.” It does not matter how brief the storage period, courts will treat the information as discoverable. Accordingly, even storage in the cloud or on a social networking site will be treated as discoverable ESI.

To summarize the eDiscovery rules, there is a duty to preserve relevant or potentially relevant information once litigation is pending or reasonably anticipated as long as it is in your custody or control. For the party filing the legal action, the litigation hold and “do not destroy” notice should be triggered before the complaint is filed. “A duty to preserve evidence arises when there is knowledge of a potential claim.” Micron Tech. v. Rambus, 255 F.R.D. 135 (D.Del.2009), affirmed in part, rev’d in part, 645 F.3d 1311 (Fed. Cir. 2011).

A recent study found that courts are imposing strong sanctions against attorneys and their clients for failing to comply with the eDiscovery rules. In a study of 401 cases before 2010 in which sanctions were sought, sanctions were awarded in over half of them. Some of the sanctions were especially severe, and included case dismissals, adverse jury instructions and large monetary sanctions. Five million in sanctions were ordered in five cases, and $1 million or more in four others. Defendants were sanctioned for eDiscovery violations nearly three times more often than plaintiffs, and the number one reason for imposing sanctions was failure to preserve electronic evidence.



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In the world of eDiscovery, it seems that there’s no end to alarmist editorializing about the next looming problem law firms and corporations have to grapple over. Authenticating social media is clearly one of those topics, seen here, here, and here. Of course, social media is a real and emerging complication to the eDiscovery landscape, but alarmism is not warranted.

Authenticating social media does present special challenges in litigation. Hacking and spoofing is a real phenomenon in social media platforms. But authenticating social media evidence involves the same common sense approach that serves in any other form of digital evidence authentication. Courts have continually ruled that evidence is authenticated by “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

Proving who wrote a message will always be a foundational issue for evidentiary hearings. For example, in State v. Eleck, (Conn. App. Ct. Aug. 9, 2011) the court ruled that just because a message came from particular Facebook account,  there is  no foundational proof of authorship. Or in Commonwealth v. Purdy, 459 Mass. 442, 450-51, 945 N.E.2d 372 (2011), an e-mail sent from Facebook account bearing defendant’s name was not proof of authorship without additional “confirming circumstances.”


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eDiscovery was once the sole concern of Big Law and large-scale litigation, but we’re long past the point when any lawyer can ignore the issue. Small and solo lawyers are learning some hard lessons about the benefits and burdens of obtaining electronic evidence in litigation, especially given the exploding volumes of social media content. But the fact is, small firms can not only effectively conduct eDiscovery investigations, but these firms are often at an advantage when competing with big firms.

Small Firm eDiscovery AdvantageWithout legacy software and processes in place, small and solo lawyers can often adapt more quickly to the challenges of social media and eDiscovery. But the issue is not just freedom from expensive legacy software- the rules actually provide small firms with ability to compete on the same footing as any BigLaw competitor. For large law firms, the only real advantage is size and resources. But ever since eDiscovery first became an issue in the early 2000’s, courts have been slowly hammering away at proportionality rules and cost sharing tests that level the playing field for small firms. If a case may only result in a $50,000 judgement, paying $30,000 for eDiscovery services is out of the question, and smart lawyers will use the rules to limit discovery to only what is necessary.

Make the Rules Work for You 

To start, every small or solo law firm attorney should familiarize themselves with the Sedona Conference’s Cooperation Proclamation. The document promotes a less adversarial approach to discovery that’s not only practical, but has been endorsed by judges across the country.


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Divorce is always a messy proposition. As discussed this week, Facebook and social media have blown up family law cases and made a contentious process even more volatile. The most spectacular recent case in this regard is perhaps a Connecticut divorce in which the husband and wife were ordered to exchange passwords so they could dig for dirt on each other.

Facebook passwords in divorce lawIt’s easy to blame technology for complicating an already painful process, but there’s no reason parties should be exchanging passwords and trolling through Facebook posts and messages. Nextpoint’s Cloud Preservation takes advantage of an authentication and authorization technology provided for third party applications by Facebook, commonly called OAuth. OAuth is the de facto standard used by Internet applications like Google and Twitter to share content.

Cloud Preservation uses Facebook’s Graph API (which uses OAuth  for authorization) to crawl private Facebook profiles in addition to public pages, including friend lists, wall posts, and just about anything published on a page. With OAuth, instead of giving a third party private Facebook credentials, the aggrieved husband and wife could simply grant access, creating a secure and forensically complete archive of the others’ page. With built-in search and review capabilities, they could quickly find whatever incriminating evidence they were hoping to get. Some of the advantages to using OAuth include:

  • The username and password stays with Facebook
  • Users can revoke access at any time
  • Users have transparent identification of the information that the third party is requesting to access

Obviously, the OAuth solution works for plenty of interesting cases, including employment issues. It may seem that social media complicates litigation, but as with most modern technologies, there is an elegant solution just below the surface.

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A guest-post by Sharon Nelson + John Simek

Like a lot of small computer forensics companies, about 25 percent of our cases involve family law. Emotions often run high in family law matters, especially when adultery is a factor (and it is almost always present).

Regardless of who is cheating, the aggrieved spouse is generally some unhappy combination of angry, sad and bitter. As people increasingly live their lives online, especially with the advent of social media, the amount of discoverable data has exploded. Unfortunately, the concept of proportionality in eDiscovery just goes out the window when parties are emotional. The tendency is to want to “nail” the cheater, to unearth every last e-mail, incriminating Facebook photo or posting, and text message.
The issues that supersede money are often child custody and visitation rights. If one parent truly shouldn’t have custody or should have only supervised visitation, we understand that spouses will want to spend whatever is necessary to obtain proof. Alcoholism, drug addiction, violence, pornography, gambling, dissipation of assets–all of these have a bearing on custody and visitation. While some people try to prove these things when they do not exist, it is understandable that folks are willing to spend whatever money is needed to get solid proof.

If the question is just allocating property, attorneys and experts can play a helpful role in diffusing emotions and helping parties, especially parties of modest means, to understand that eDiscovery should be proportional to the assets involved in the case. Most experts and attorneys do attempt to do this, though there are always some who are happy to gin up the passions and thereby make more money out of the ensuing battles.

The old adage “the customer is always right” is often ironic. So sometimes, we have to take the instructions of our clients (or attorneys) when they make little sense. There is little experts can do (after tendering good advice) except shake their heads and follow orders.

The husband and wife team of Sharon Nelson and John Simek are frequent speakers and commentators on eDiscovery issues at national conferences and events. Sharon is the President of Sensei Enterprises, where she has worked on the front lines of computer forensics and eDiscovery issues, which she also blogs about at Ride the Lightning. John is the Vice President of Sensei Enterprises and is a nationally known testifying expert in computer forensic issues.

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Social Media and Family law are a volatile mix. According to the American Academy of Matrimonial Lawyers (AAML), more than 80 percent of divorce attorneys have used social media posts in divorce court cases. In a prominent recent case, a judge in Connecticut ordered a husband and wife to exchange social media and dating site passwords as the best way to settle their acrimonious divorce. The husband’s divorce lawyer, Gary Traystman, told Forbes these ugly disputes have left him so unnerved he refuses to use a computer. “I see the information people can get from computers, in lawsuits and through hacking. They scare the hell out of me.”

The rest of the world probably doesn’t want to follow Mr. Traystman’s example, so it’s important that attorneys in family law learn to integrate smart social media planning into their litigation practice. Parties are frequently caught pursuing affairs on Facebook. Custody battles often revolve around Facebook photos of individuals consuming alcohol inappropriately. Individuals or small businesses are frequently caught promoting services on Facebook that they claim do not exist. Many individuals lose out on disability insurance or even alimony for Facebook photos involving heavy lifting or other activity they supposedly could not perform. And being Facebook “friends” with the wrong person can cause all sorts of unwanted trouble. Judges are just now beginning to learn to limit juror access to social media, as Facebook is creating several cases of juror misconduct from online comments about a trial.

Facebook evidence is now central to countless cases, but courts still struggle with how to integrate this content into existing evidentiary procedures. While Facebook evidence seems like an easy way to discovery smoking gun evidence, lawyers need to keep some sensible rules in mind.

Don’t Assume a Facebook Message is Authentic

Commonwealth v. Duncan Purdy (December 6, 2010) Courts have sensibly rules that just because a message comes from someone’s Facebook account is not enough to authenticate a message. In fact, courts rely on largely the same standards of authentication used in other digital communications, which demands forensically sound tools to capture and archive content.


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May will be “social media in the law month” on Frank, putting a spotlight on the ways social media is changing eDiscovery for small firms and personal cases. eDiscovery was once the sole concern of Big Law and large-scale litigation, but has increasingly become an issue in smaller cases for smaller law firms. In large part, that trend is being driven by the rise of social media evidence.

Dishon & Block Family Law Attorneys produced this neat infographic, “How Family Law Attorneys Use Social Media Evidence in Court Cases,” to illustrate just how widespread this phenomenon is. Consider that over 42 percent of all Americans are on Facebook and 250 million people are daily users of the site. And as of this year, 10 percent of American adults will be using Twitter. That means more Americans are not just living their lives online, but leaving a rich and valuable trail of digital records that is discoverable in litigation. That digital trail is driving many family, employment, and other small, personal cases, changing the litigation landscape in new and profound ways.

To lawyers, it means developing an expertise in obtaining and managing digital records from these sources. According to the 2011 ABA Legal Technology Survey, almost 40 percent of solo attorneys now regularly respond to eDiscovery requests for digital evidence.

Small and solo lawyers are learning some important lessons about the benefits and burdens of obtaining electronic evidence in litigation. Small firms can not only effectively conduct eDiscovery and forensic investigation, but these firms are often at an advantage when competing with big firms. Without legacy software and processes in place, small and solo lawyers can often adapt more quickly to the challenges of social media and eDiscovery. In addition, after some false starts and confusing decisions, the courts are clarifying and defining the scope and practice of  social media discovery.

This month, look for a roundup of social media and eDiscovery cases that are driving the law ahead into this new world, technology news that will change how you think about eDiscovery, and in-depth analysis of the ongoing trends. This week, Sharon Nelson and John Simek, well-known forensic examiners from Virginia will share some of their experiences in the trenches of eDiscovery.

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