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Archive for the ‘Preservation’ Category

It might seem difficult to get excited over the state of Florida adopting it’s own rules for managing eDiscovery, effective last month. After all, they’re the 29th state to adopt such rules, and they are closely based on the amendments to the Federal Rules of Civil Procedure adopted at the federal level six years ago.

But the rules adopted in Florida also show that eDiscovery continues to be taken seriously as an ongoing challenge. Even if it it is taking an interminable amount of time for the United States’ judicial system to get these kind of eDiscovery rules in place, it’s nice to see that they continually evolve and mature. According to Law.com, “In all, the new rules demonstrate that the Florida Supreme Court has benefited from the experience of other states, federal courts, and local, knowledgeable practitioners to establish a well-thought-out framework.”

For example, the rules incorporate the principles found in The Sedona Conference Cooperation Proclamation, which encourage cooperation between parties, and even make  it an obligation in litigation. Many lawyers and judges have long felt that the discovery process will implode if the process remains adversarial, but they had no way to change things. The Proclamation was once considered an impractical and unrealistic approach to eDiscovery, but enshrinement in state rules could change that. In addition, the new rules codify the proper basis for a court’s evaluation of proportionality and good cause in eDiscovery, providing a clear mechanism for reigning in eDiscovery costs.

We’re more than halfway to getting all states on board with the new rules of eDiscovery. It’s been a long and painful process, but let’s hope that states can continue to be flexible and forward-thinking in adopting these rules. The original amendments to the Federal rules of Civil Procedure were a good start, but they are already in need of updating. Rather than wholesale adoption of the already strained Federal Rules of Civil Procedure, let’s have more thoughtful implementation like this.

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Being in the legal technology field can be frustrating. Technology changes fast but the law moves slowly, deliberately, and often in convoluted ways. You have to somehow stay ahead of the technology curve while waiting for the courts to catch up. It wasn’t until 2006 that federal courts were able to get the basic rules in place regarding the handling of electronic evidence in litigation.

Social media is a particularly frustrating example. Several courts have issued rulings affirming that social media is discoverable in litigation. But for the most part, the case law has been evolving and maturing in spurts and stops. As we’ve noted before, the case law has been clearly evolving to indicate that social media is in fact discoverable in litigation.

No more ignoring social media in eDiscovery.

But there has been a lot of variance between courts in how much social media content is discoverable. Some courts have found only public profiles are discoverable and private messages were immune from disclosure. But for the most part, if parties could demonstrate that social media content is likely to reveal information about a party’s emotional, mental, or physical state that cannot be found through other means, that information is discoverable.

Lawyers Love Lists

The groundbreaking Zubulake case was important because it provided a complete and detailed list of factors to consider when producing email in litigation. In a series of five separate rulings across hundreds of dense pages of balancing tests, U.S. District Judge Shira A. Scheindlin outlined in Zubulake v. UBS Warburg what electronic evidence was discoverable in an otherwise unexceptional employment dispute.

Similarly, in a recent employment dispute, Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)the court has provided lawyers with a detailed list of factors to consider when attempting to acquire social media content for litigation. The broad discovery request in this matter included “photographs, videos, and blogs, as well as Facebook, LinkedIn, and MySpace” content that reveals the defendants “emotion, feeling, or mental state.”

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Nextpoint "Expert Witness" PostNextpoint recently spoke with Steve Wernikoff, attorney with the Federal Trade Commission in Chicago who specializes in consumer protection matters involving e-commerce and emerging technologies. Steve has led numerous investigations and civil prosecutions involving online advertising, spam, mobile marketing, financial fraud, telemarketing, and data privacy and security. He also has served as an adjunct faculty member at two Chicago law schools where he has taught courses involving Internet fraud, online advertising, and privacy issues. Prior to working at the FTC, Steve worked at a Chicago law firm and clerked for two federal court judges.

Nextpoint: The FTC is a relatively small organization with a broad mission and jurisdiction. How does the FTC choose where to deploy resources?

Steve Wernikoff: One major way that the FTC prioritizes its efforts is based on the complaints it receives from consumers. The FTC accepts consumer complaints by telephone and at the FTC’s website, which are then added to the FTC’s Consumer Sentinel complaint database. A number of other state and federal government agencies, as well as some private entities, provide consumer complaints for the Consumer Sentinel. The database allows the FTC staff to identify fraud trends and search for top violators. The Internet poses additional challenges for identifying investigation targets because consumers often do not know the identity of the party that has defrauded them. So the FTC staff also spends a lot of time scouring the Internet, like a consumer would, looking for areas of concern.

What role does technology play in effectively litigating against large, well-funded businesses?US Federal Trade Commission talks Technology

SW: From forensic data acquisition and document management solutions, to courtroom technology and general consulting services, our need for technical litigation support is growing. To support this growing need for eDiscovery tools and services, an FTC litigation support system was created. The system uses advanced tools for litigation support that enable users to acquire, analyze, organize, and present large volumes of digital evidence. Program managers are continuously evaluating new software and hardware to increase efficiency and respond to new technologies used by third parties.

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As it begins to dawn on people that social media is discoverable for litigation, it’s tempting to think that tweets, posts, and content can simply be downloaded from the provider. For example, The New York Times recently reported that Twitter is working on a way to retrieve old, expired tweets, and Facebook already has mechanisms for retrieving and downloading old posts. However, lawyers should not think they can rely on this approach for the demands of litigation.

Let’s start with the problems with Facebook’s export tool. The bottom line is that it is simply a snapshot of a Facebook page at a given point in time, and not a complete, forensically sound piece of evidence. If a user downloads a copy of content from Facebook after they receive a discovery request or regulatory inquiry, it may not contain all of the information associated with a post, like who shared a post. In addition, once a post is deleted, it’s deleted forever and likely unrecoverable. And Facebook’s functionality is limited to the account owner, so users cannot retrieve any public profile’s or fan page’s archive.

The Real Time Advantage

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 capturing entire posts, all associated and linked content, and everything a lawyer would need for litigation or regulatory request.

Not only does Cloud Preservation capture Twitter content in real-time, but users can also crawl Facebook profiles anonymously, crawl other Facebook users’ profiles, and crawl age and country Facebook restricted pages. That means you are capturing content before it can be deleted or disappear into the cloud. While it may be possible to get social media content from a few service providers, it’s simply not credible to think it’s a sensible solution for true litigation preparedness.

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Tom Chernaik is CEO of CMP.LY. The company’s unique disclosure solution is built on a foundation of Tom’s experience and insights in marketing, law, social media and entrepreneurship. Tom is Co-Chair of the Members Ethics Advisory Panel of the Word of Mouth Marketing Association (WOMMA) and is a frequent speaker at events on social media ethics and disclosure.

Nextpoint: Why can social media disclosure be such a headache when it comes to regulatory compliance?

Tom Chernaik: There are three sources of headaches: Understanding of the appropriate regulations and guidelines; developing a social media policy aligned with business objectives; and assuring adherence to that policy.

Depending on industry sector, US companies may need to address the requirements of the Federal Trade Commission (FTC), the Securities Exchange Commission (SEC), the Financial Industries Regulatory Authority (FINRA) and/or the Food and Drug Administration (FDA). While the policies of each agency continue to evolve, sufficient guidance has been provided for companies to develop compliant processes for social media communications.

Many companies see the regulations as reasons to significantly limit their social media activities. While marketers are beginning to realize social media as an effective means to build customer relationships, increase awareness for their brands and boost sales, a lack of clarity on how to implement compliant social media programs often holds companies back or exposes them to unnecessary risk or liability. The companies that don’t resolve these conflicts are facing competitive disadvantages that will become more significant in the near future.

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Last week, Michelle Sherman outlined the legal obligations and emerging case law regarding social media and eDiscovery. Once an organization has internalized and put these considerations into policy, there is then the practical issues involved in actually preserving social media content and archiving the material. No matter which vendor performs this role, there are a number of important factors to keep in mind.

Social Media Discovery

There are obviously different approaches to social media and website archiving, but these are the essential components of any forensically complete archive.

1. Use the API

The most accurate way to preserve web data is to make use of Application Programming Interfaces (APIs) available from social media properties. Software programs communicate with each other through APIs. Whenever possible, archiving solutions should involve an open authorization (oAuth) approach, which is the de facto standard used by Internet applications like Google and Twitter to share content. For example, 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.

2. Don’t lose the metadata

As Michelle noted last week, Facebook offers a “Download a Copy of Your Facebook Data” through its Account Settings, but this feature misses comments and metadata fields necessary for eDiscovery. Any preservation of data for legal or regulatory reasons must include metadata for authentication and completeness. When archiving social media, consider whether the solution is actually pulling data from an API or simply taking a screen shot of what can be viewed in a browser. A screen shot won’t include metadata or other information that is often necessary in a lawsuit or regulatory hearing.

3. Capture original, unaltered source files

Social media content is dynamic, which means it is continually changing, and often looks different to different users. However, an archive that includes all original unaltered source files including HTML, images, video, CSS (style sheets), Javascript, linked files such as PDF’s, and any other data referenced or linked to on the page will provide the best possible preserved copy of any given page.

Additionally, a solution that captures content in real time preserves the most accurate copy possible, since content is being updated, changed, or deleted on an ongoing basis. A failure to catch those changes in can miss vital information or evidence.

4. Maintain a searchable archive

Always assume that captured data will have to someday be searched, reviewed, and produced to opposing counsel or regulators. Any workable solution must be able to perform all phases of eDiscovery review and production for any archived website or social media property.

5. Capture off-site content

Social media is often a series of reposted, linked, or retweeted content. A solution that cannot capture that information is of no use; it’s like archiving an email without the attachment. To archive a web page in its entirety on a given day means including content from related pages as well as third party servers such as video providers like YouTube or social media streams from Twitter. Note that some archival strategies attempt to build and store a browse-able version of a website, they in fact have to modify the core source files by changing links and attempting to make static versions of dynamic website components. This does not result in an archive of the original, unaltered source files.

Social media discovery is now a clear and unequivocal legal obligation in many contexts, and courts have made it clear that an archive of such content must be forensically complete and accurate. For example, in Griffin v. State, the court overturned a murder conviction at least in part over a failure to authenticate evidence obtained from a MySpace profile, which had been presented as a printout. Any social media archiving and preservation strategy requires some thoughtful consideration about what social media data to capture and preserve. But most importantly, any social media archive needs to be captured and managed in a forensically complete, searchable, and usable format. Otherwise, even the best litigation preparedness strategy falls apart.

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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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