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Evidence

First Pass Review: Of Your Opponent’s Data

In the past few years, applications that support Early Case Assessment (ECA) (or Early Data Assessment, as I prefer to call it) and First Pass Review (FPR) of ESI have become widely popular in eDiscovery as the analytical and culling benefits of conducting FPR have become obvious. The benefit of these FPR tools to analyze and cull their ESI before conducting attorney review and producing relevant files has become increasingly clear. But, nobody seems to talk about what these tools can do with opponent’s produced ESI.

Less Resources to Understand Data Produced to You

In eDiscovery, attorneys typically develop a reasonably in-depth understanding of their collection. They know who the custodians are, have a chance to interview those custodians and develop a good knowledge of standard operating procedures and terminology of their client to effectively retrieve responsive ESI. However, that same knowledge isn’t present when reviewing opponent’s data. Unless they are deposed, the opposition’s custodians aren’t interviewed and where the data originated is often unclear. The only source of information is the data itself, which requires in-depth analysis. An FPR application like FirstPass™, powered by Venio FPR™, can make a significant difference in conducting that analysis – provided that you request a native production from your opponent, which is vital to being able to perform an in-depth analysis.

Email Analytics

The ability to see the communication patterns graphically – to identify the parties involved, with whom they communicated and how frequently – is a significant benefit to understanding the data received. FirstPass provides email analytics to understand the parties involved and potentially identify other key opponent individuals to depose in the case. Dedupe capabilities enable quick comparison against your production to confirm if the opposition has possibly withheld key emails between opposing parties. FirstPass also provides an email timeline to enable you to determine whether any gaps exist in the opponent’s production.

Tomorrow, I’ll talk about the use of synonym searching to find variations of your search terms that may be common terminology of your opponent. Same bat time, same bat channel! 🙂

In the meantime, what do you think? Have you used email analytics to analyze an opponent’s produced ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

Social Tech eDiscovery: Twitter Guidelines for Law Enforcement

Tuesday, I provided information regarding Facebook’s Law Enforcement page with information about serving civil subpoenas. Facebook provides quite a bit of useful information regarding serving subpoenas, including the address for registered agent (to process requests), information required to identify users, fee for processing, turnaround time, and fee to expedite responses. Facebook is very informative with regard to how subpoenas are handled in terms of cost and time to process.

So, it makes sense to look at other popular social media sites to see how they are handling this issue. Twitter is probably right behind Facebook in terms of popularity in the social media world and they have a “Guidelines for Law Enforcement” page to address requests for non-public information for Twitter users.

As the Twitter policy notes, most Twitter profile information is public, so anyone can see it. A Twitter profile contains a profile image, background image, as well as the status updates, which, of course, they call “tweets”. In addition, the user has the option to fill out location, a URL, and a short “bio” section about themselves for display on their public profile. Non-public information includes “log data” such as IP address, browser type, the referring domain, pages visited, search terms and interactions with advertisements (as noted in their Privacy Policy page).

Twitter doesn’t provide any cost information regarding processing subpoena requests, nor do they address standard turnaround times or fees to expedite processing. Their policy is to notify users of requests for their information prior to disclosure unless they are prohibited from doing so by statute or court order and they do require the URL of the Twitter profile in question to process any subpoena requests. They do provide email, fax and physical address contact information to address user information requests. FYI, only email from law enforcement domains will be accepted via the email address. Preservation requests must be signed with a valid return email address, and sent on law enforcement letterhead. Non-law enforcement requests should be sent through regular support methods (via their main support page).

So, what do you think? Have you ever needed to file a subpoena on Twitter? Please share, or let us know or if you’d like to know more about a particular topic.

Social Tech eDiscovery: Facebook Subpoena Policy

As President and CEO of Trial Solutions, I’ve noted and embraced the explosion in use of social technology over the past few years (Trial Solutions has a Facebook, Twitter and LinkedIn page, and this blog, with more to come soon). According to new statistics from Nielsen, social network sites now account for 22.7% of time spent on the web, a 43% jump in one year (by contrast, email only accounts for 8.3%). With that explosion in social tech use, companies have had to address social media as another form of media to collect for eDiscovery. It seems there’s a new article or blog post online every week on the subject and there is a social media webinar at Virtual Legal Tech this Thursday.

As probably the most popular social media site, Facebook is one of the most likely sites for relevant ESI. There are already a number of stories online about people who have lost their jobs due to Facebook postings, such as these. There is even a Facebook group to post stories about Facebook firings. Oh, the irony!

Naturally, cases related to Facebook eDiscovery issues have become more prevalent. One case, EEOC v. Simply Storage Management, resulted in a May ruling that “SNS (social networking site) content is not shielded from discovery simply because it is ‘locked’ or ‘private’”. So, request away!

If the employee resists or no longer has access to responsive content (or you need to request from their online friends through “Wall” posts), you may have to request content directly from Facebook through a subpoena. Facebook has a Law Enforcement page with information about serving civil subpoenas, including:

  • Address for Registered Agent (to process requests)
  • Information Required to Identify Users – Facebook user ID (“UID”) or email address
  • Fee for Processing ($500, plus an additional $100 if you want a notarized declaration)
  • Turnaround Time (minimum of 30 days)
  • Fee to Expedite Responses ($200)

Obviously, fees are subject to change, so check the page for the latest before serving your subpoena.

So, what do you think? Have you ever needed to file a subpoena on Facebook? Aware of other case law related to Facebook eDiscovery? Please share, or let us know or if you’d like to know more about a particular topic.

Case Law: Spoliate Evidence and Go to Jail?!?

One of the most well-known cases in eDiscovery is Victor Stanley (VSI) v. Creative Pipe (CPI) and is a prime example of what NOT to do when conducting a search for relevant ESI in litigation – Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 U.S. Dist. LEXIS 42025 (D. Md. May 29, 2008), – including not testing the search methodology, resulting in inadvertent disclosure of 185 privileged documents, and the waiving of privilege of same. If you’re not familiar with this case, Google it and you’ll find plenty of sites/articles that discuss its significance.

If that was a blow to Creative Pipe and their president, Mark Pappas, the order issued on September 9th for that same case (now widely referenced as “Victor Stanley II”) makes the May 2008 order pale in comparison.

Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.” As a result, he ordered “that Pappas’s pervasive and willful violation of serial Court orders to preserve and produce ESI evidence be treated as contempt of court, and that he be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”

Ouch!

Clearly, Judge Grimm felt that Pappas’ and CPI’s behavior in this case over four years represented intentional destruction of evidence and he ruled accordingly on plaintiff’s motion regarding same. Perhaps his view of their actions can be summarized by footnote 19 in the order:

“CPI named one of its product lines the “Fuvista” line. Pappas admitted during discovery that “Fuvista” stood for “F**k you Victor Stanley,” (Pappas Dep. 22:20-24, Pl.’s Mot. Ex. 5, ECF No. 341-5), demonstrating that Pappas’s wit transcended sophomoric pranks such as logging into VSI’s web site as “Fred Bass” and extended to inventing insulting acronyms to name his competing products. When disclosed, the meaning of this acronym removes any doubt about his motive and intent. No doubt Pappas regarded this as hilarious at the time. It is less likely that he still does.”

So, what do you think? Is this the start of a trend – prison sentences for evidence spoliation? Or, is this an extreme example of clear intentional evidence destruction? Please share any comments you might have (including examples of other cases where sanctions included jail time) or if you’d like to know more about a particular topic.

More to come on this case in the future…