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Plaintiffs Not Sanctioned for Late Production, Citing Their $29,000 Expense to Hire Experts to Assist: eDiscovery Case Law

In Federico et al. v. Lincoln Military Housing LLC, et al., 2:12-cv-80 (E.D. VA, Dec. 31, 2014), Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records”, except for a portion of the reasonable attorney’s fees associated with the original motion to compel.

Case Summary

In this class action for personal injury and property damage allegedly arising from mold in military housing, there had been numerous discovery disputes, including several motions for sanctions and reciprocal requests for costs and fees related to the parties’ alleged non-compliance. On June 4, 2014, the Court held the first hearing on discovery disputes, which came on the plaintiffs’ motions for Protective Orders seeking relief from the defendants’ requests for production, and certain subpoenas, during which the Court admonished the assembled plaintiffs present at the hearing to turn over related material to their attorney and permit counsel to determine whether it was relevant. The Court also advised the plaintiffs that there could be consequences if materials were not provided as required by the Rules.

After the plaintiffs’ supplemental productions were still considered incomplete by the defendant, the plaintiffs’ counsel stated they had engaged an outside vendor to provide estimates (which were then estimated to be $22,450, eventually rising to $29,000) and design a search protocol for electronic media. On July 10, the plaintiffs requested an emergency hearing to extend the July 17 production deadline, which the Court declined to do, advising plaintiffs’ counsel that if the plaintiffs were unable to produce any more responsive documents, they were required to advise the Court and defendants of the nature of any search they had performed. After the plaintiffs failed to meet the production deadline, the defendants filed a motion for sanctions to dismiss the plaintiffs’ claims for failure to comply.

In subsequent oral argument regarding the defendants’ motion, the plaintiffs indicated that they had engaged their IT consultant, who was present and described the ongoing process for searching and processing relevant records, primarily from social media. As a result, the Court deferred any ruling until after the consultant’s production. In September, Plaintiffs produced the results of their consultant’s search, including over 5,000 records from social media, and contended that any material omitted resulted from their clients’ inexperience in managing electronic production and not from bad faith or intentional destruction of evidence.

Judge’s Decision

Judge Miller used the Fourth Circuit’s four-part test to help decide whether to impose sanctions, as follows: (1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective. With regard to the bad faith factor, Judge Miller stated:

“Defendants have failed to establish that any Plaintiff deliberately destroyed evidence known to be relevant, or otherwise acted in bad faith. While Plaintiffs’ delayed production should not have required Court action, they did eventually produce a nearly complete record of email and social medial posts and these materials were available to Defendants prior to most of the depositions. In addition, the limited relevance of the voluminous material produced suggests that any gaps in production were not likely intentional and do not prejudice Lincoln’s defense.”

As a result, Judge Miller ruled that the Court “declines to impose any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records, but will award a portion of the reasonable attorney’s fees associated with the original motion to compel.”

So, what do you think? Should the plaintiffs have been sanctioned for their late production or was the judge’s ruling appropriate, considering the plaintiffs’ challenges and expense and efforts to comply? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2014 eDiscovery Case Law Yhttps://cloudnine.com/ediscoverydaily/case-law/2014-ediscovery-case-law-year-in-review-part-3/ear in Review, Part 3

As we noted yesterday and the day before, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to eDiscovery cost sharing and reimbursement, fee disputes and production format disputes. Today, let’s take a look back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute.

We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

PRIVILEGE / INADVERTENT DISCLOSURES

There were a couple of cases related to privilege issues, including one where privilege was upheld when the plaintiff purchased the defendant’s seized computer at auction! Here are two cases where disclosure of privileged documents was addressed:

Privilege Not Waived on Defendant’s Seized Computer that was Purchased by Plaintiff at Auction: In Kyko Global Inc. v. Prithvi Info. Solutions Ltd., Washington Chief District Judge Marsha J. Pechman ruled that the defendants’ did not waive their attorney-client privilege on the computer of one of the defendants purchased by plaintiffs at public auction, denied the defendants’ motion to disqualify the plaintiff’s counsel for purchasing the computer and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

Plaintiff Can’t “Pick” and Choose When it Comes to Privilege of Inadvertent Disclosures: In Pick v. City of Remsen, Iowa District Judge Mark W. Bennett upheld the magistrate judge’s order directing the destruction of an inadvertently-produced privileged document, an email from defense counsel to some of the defendants, after affirming the magistrate judge’s analysis of the five-step analysis to determine whether privilege was waived.

SOCIAL MEDIA

Requests for social media data in litigation continue, though there were not as many disputes over it as in years past (at least, not with cases we covered). Here are three cases related to social media data:

Plaintiff Ordered to Produce Facebook Photos and Messages as Discovery in Personal Injury Lawsuit: In Forman v. Henkin, a Motion to Compel was granted in part for a defendant who requested authorization to obtain records of the plaintiff’s private postings to Facebook.

Plaintiff Ordered to Re-Open Social Media Account for Discovery: In Chapman v. Hiland Operating, LLC, while noting that he was “skeptical” that reactivating the plaintiff’s Facebook account would produce any relevant, noncumulative information, North Dakota Magistrate Judge Charles S. Miller ordered the plaintiff to “make a reasonable, good faith attempt” to reactivate her Facebook account.

Order for Financial Records and Facebook Conversations Modified Due to Privacy Rights: In Stallings v. City of Johnston City, Illinois Chief District Judge David R. Herndon modified an earlier order by a magistrate judge in response to the plaintiff’s appeal, claiming that the order violated the privacy rights of the plaintiff, and of minor children with whom the plaintiff had held conversations on Facebook.

TECHNOLOGY ASSISTED REVIEW

Technology assisted review continued to be discussed and debated between parties in 2014, with some disputes involving how technology assisted review would be conducted as opposed to whether it would be conducted at all. Courts continued to endorse technology assisted review and predictive coding, even going so far as to suggest the use of it in one case. Here are six cases involving the use of technology assisted review in 2014:

Court Rules that Unilateral Predictive Coding is Not Progressive: In In Progressive Cas. Ins. Co. v. Delaney, Nevada Magistrate Judge Peggy A. Leen determined that the plaintiff’s unannounced shift from the agreed upon discovery methodology, to a predictive coding methodology for privilege review was not cooperative. Therefore, the plaintiff was ordered to produce documents that met agreed-upon search terms without conducting a privilege review first.

Court Rules in Dispute Between Parties Regarding ESI Protocol, Suggests Predictive Coding: In a dispute over ESI protocols in FDIC v. Bowden, Georgia Magistrate Judge G. R. Smith approved the ESI protocol from the FDIC and suggested the parties consider the use of predictive coding.

Court Sides with Defendant in Dispute over Predictive Coding that Plaintiff Requested: In the case In re Bridgepoint Educ., Inc., Securities Litigation, California Magistrate Judge Jill L. Burkhardt ruled that expanding the scope of discovery by nine months was unduly burdensome, despite the plaintiff’s request for the defendant to use predictive coding to fulfill its discovery obligation and also approved the defendants’ method of using search terms to identify responsive documents for the already reviewed three individual defendants, directing the parties to meet and confer regarding the additional search terms the plaintiffs requested.

Though it was “Switching Horses in Midstream”, Court Approves Plaintiff’s Predictive Coding Plan: In Bridgestone Americas Inc. v. Int’l Bus. Mach. Corp., Tennessee Magistrate Judge Joe B. Brown, acknowledging that he was “allowing Plaintiff to switch horses in midstream”, nonetheless ruled that that the plaintiff could use predictive coding to search documents for discovery, even though keyword search had already been performed.

Court Approves Use of Predictive Coding, Disagrees that it is an “Unproven Technology”: In Dynamo Holdings v. Commissioner of Internal Revenue, Texas Tax Court Judge Ronald Buch ruled that the petitioners “may use predictive coding in responding to respondent’s discovery request” and if “after reviewing the results, respondent believes that the response to the discovery request is incomplete, he may file a motion to compel at that time”.

Court Opts for Defendant’s Plan of Review including TAR and Manual Review over Plaintiff’s TAR Only Approach: In Good v. American Water Works, West Virginia District Judge John T. Copenhaver, Jr. granted the defendants’ motion for a Rule 502(d) order that merely encouraged the incorporation and employment of time-saving computer-assisted privilege review over the plaintiffs’ proposal disallowing linear privilege review altogether.

APPLE V. SAMSUNG

Every now and then, there is a case that just has to be covered. Whether it be for the eDiscovery related issues (e.g., adverse inference sanction, inadvertent disclosures, eDiscovery cost reiumbursement) or the fact that billions of dollars were at stake or the fact that the case earned its own “gate” moniker, the Apple v. Samsung case demanded attention. Here are the six posts (just from 2014, we have more in previous years) about this case:

Quinn Emanuel Sanctioned for Inadvertent Disclosure, Samsung Escapes Sanction: California Magistrate Judge Paul S. Grewal has now handed down an order on motions for sanctions against Samsung and the Quinn Emanuel law firm in the never-ending Apple v. Samsung litigation for the inadvertent disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Apple Can’t Mention Inadvertent Disclosure in Samsung Case: Back in January, Quinn Emanuel Urquhart & Sullivan LLP was sanctioned for their inadvertent disclosure in the Apple vs Samsung litigation (commonly referred to as “patentgate”). California Magistrate Judge Paul S. Grewal handed down an order on motions for sanctions against Quinn Emanuel (in essence) requiring the firm to “reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it”. Many felt that Samsung and Quinn Emanuel got off lightly. Now, Apple can’t even mention the inadvertent disclosure in the upcoming Samsung trial.

Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested: Those of you who have been waiting for significant news to report from the Apple v. Samsung litigation, your wait is over! As reported last week in The Recorder, a California Federal jury ordered Samsung on Friday to pay Apple $119.6 million for infringing three of Apple’s iPhone patents. However, the award was a fraction of the nearly $2.2 billion Apple was requesting.

Samsung and Quinn Emanuel Ordered to Pay Over $2 Million for “Patentgate” Disclosure: Remember the “patentgate” disclosure last year (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia? Did you think they were going to avoid having to pay for that disclosure? The answer is no.

Court Refuses to Ban Samsung from Selling Products Found to Have Infringed on Apple Products: Apple may have won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”. But, Samsung has may have won the war with the court’s refusal to ban Samsung from selling products that were found to have infringed on Apple products.

Apple Recovers Part, But Not All, of its Requested eDiscovery Costs from Samsung: Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products. Now, they’re fighting over relative chicken-feed in terms of a few million that Apple sought to recover in eDiscovery costs.

Tomorrow, we will cover cases related to the most common theme of the year (three guesses and the first two don’t count). Stay tuned!

So, what do you think? Did you miss any of these? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Twitter Might “Bug” You if You Want to Retrieve Archive Data – eDiscovery Best Practices
 

Thanks to the Google Alerts that I set up to send me new stories related to eDiscovery, I found an interesting blog post from an attorney that appears to shed light on an archival bug within Twitter that could affect people who may want to retrieve Twitter archival data for eDiscovery purposes.

In Erik J. Heels’ blog, his latest post (Twitter Bug Makes Tweet Archives Unreliable For eDiscovery), he starts by noting that his very first tweet of October 30, 2008 is no longer active on his site – his earliest tweet was dated September 5, 2010.  All attempts to try to locate the tweets were unsuccessful and customer service was no help.

After some digging, Erik found out that, on October 13, 2010, Twitter announced the “new Twitter” which included a new user interface.  As part of that revamping, Twitter changed the format for its status URLs (Tweets) so that the sequential number at the end of each Tweet (the Tweet ID) changed length, eventually doubling from nine digits in 2008 to 18 digits today (which supports up to one quintillion tweets).

Then, on December 12, 2012, Twitter announced that users could export archives of their Tweets (via your account’s Settings page).  The result is a nine field comma-separated values (CSV) file with information, including the tweet ID.  So, now you could retrieve your old tweets that were no longer actively stored, right?  Not necessarily.

As Erik found out, when he exported the file and went to retrieve old tweets, some of his tweet IDs actually pointed to other people’s tweets!  You can see the details of his tests in his blog post or via his 60 second YouTube video here.

Obviously, if you need to retrieve archived tweets for eDiscovery purposes, that’s not a good thing.

As it happens, CloudNine Discovery has our own Twitter account (@Cloud9Discovery) and has since August of 2009 (we were known as Trial Solutions back then), so I decided to run my own test and exported our archive.  Here’s what I found:

  • Our very first tweet was August 17, 2009 (Trial Solutions Ranks 2,830 on the Exclusive 2009 Inc. 5000).  It retrieved correctly.  The bit.ly link within the tweet isn’t hyperlinked, but if you copy and paste it into the browser address, it correctly retrieves (obviously, this will only be the case if the referenced web page still exists).
  • In fact, all of the early tweets that I tested retrieved with no problem.
  • Then, on December 1, 2010, I encountered the first tweet that didn’t retrieve correctly (one of our blog posts titled eDiscovery Project Management:  Effectively Manage Your Staff) with a tweet ID of 9924696560635900 (Full URL: https://twitter.com/Cloud9Discovery/status/9924696560635900).  It didn’t point to a different person’s tweet, it simply said “Sorry, that page doesn’t exist!”
  • From that point on, none of the tweets that I tried to retrieve would retrieve – all gave me the “page doesn’t exist” message.
  • I even tried to retrieve our tweet of yesterday’s blog post (Defendant Ordered to Produce Archived Emails Even Though Plaintiff Failed to Produce Theirs – eDiscovery Case Law) via the tweet ID provided in the archive file (535098008715538000).  Even it wouldn’t retrieve.  Wait a minute, what’s going on here!

I then retrieved our tweet of yesterday’s blog post by clicking on it directly within Twitter.  Here is the URL to the tweet with the ID at the end: https://twitter.com/Cloud9Discovery/status/535098008715538434.

See the problem?  The tweet IDs don’t match.

I ultimately determined that all of the tweet IDs provided in the archive file starting on December 1, 2010 end with two or more zeroes.  Starting on November 5, 2010, they all end with at least one zero.  When I started testing those, I re-created Erik’s problem:

Our tweet on November 29, 2010 titled eDiscovery Trends: Sanctions at an All-Time High, (tweet ID: 9199940811100160) actually retrieves a tweet by @aalyce titled @StylesFever snog liam marry louis and niall can take me out 😉 hehe.  Whoops!

It appears as though the archive file provided by Twitter is dropping all digits of the tweet ID after the fifteenth digit and replacing them with zeroes, effectively pointing to either an invalid or incorrect page and rendering the export effectively useless.  Hopefully, Twitter can fix it – we’ll see.  In the meantime, don’t rely on it and be prepared to address the issue if your case needs to retrieve archived data from Twitter.  Thanks, Erik, for the heads up!

So, what do you think?  Have you ever had to preserve or produce data from Twitter in litigation?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Twitter Sues for the Right to be More Transparent – Social Tech eDiscovery

Back in July, we took a look at Twitter’s Transparency Report to show government requests for data over the last six months of 2013 (we had previously looked at their very first report here).  However, because Twitter is barred by law from disclosing certain details on government surveillance requests, the Transparency Report is not as transparent as Twitter would like.  So, on Tuesday, Twitter filed suit against the FBI and the Justice Department, seeking the ability to release more detailed information on government surveillance of Twitter users.

As reported by The Huffington Post, Twitter is asking a judge for permission to publish its full transparency report, including the number of so-called “national security letters” and Foreign Intelligence Surveillance Act orders that it receives. Twitter claims that restrictions on its ability to speak about government surveillance requests are unconstitutional under the First Amendment.

“We’ve tried to achieve the level of transparency our users deserve without litigation, but to no avail,” Twitter said in a blog post announcing the lawsuit, which was filed in federal court.  “It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges.

So, today, we have filed a lawsuit in federal court seeking to publish our full Transparency Report, and asking the court to declare these restrictions on our ability to speak about government surveillance as unconstitutional under the First Amendment. The Ninth Circuit Court of Appeals is already considering the constitutionality of the non-disclosure provisions of the NSL law later this week.”

Transparency reports are typically issued by companies to disclose numerous statistics related to requests for user data, records, and website content. These reports indicate the frequency and authority that governments request data or records over the given period. Due to the creation of these reports, the public may be informed of the private information governments gain access to via search warrants, court subpoenas and other methods.  Many other major communication platforms provide Transparency Reports as well, such as Facebook, LinkedIn, Google and Microsoft.

In Twitter’s most recent Transparency Report, they received 2,058 requests for information on its users over the previous six months from governments around the world – a 46 percent increase from 1,410 requests received the previous six months.  Over 61 percent of those requests (1,257 total) came from the US Government (Japan was next on the list with a mere 192 requests).

Twitter said it supports the USA Freedom Act of 2014, which was introduced earlier this year by Sen. Patrick Leahy (D-Vt.). The bill would allow for greater public reporting about government surveillance requests.

A copy of Twitter’s filed complaint can be found here.

So, what do you think?  Do you agree with Twitter that they deserve the right to greater transparency?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Our 1,000th Post! – eDiscovery Milestones

When we launched nearly four years ago on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis.  Now, after doing so each business day (except for one), I’m happy to announce that today is our 1,000th post on eDiscovery Daily!

We’ve covered the gamut in eDiscovery, from case law to industry trends to best practices.  Here are some of the categories that we’ve covered and the number of posts (to date) for each:

We’ve also covered every phase of the EDRM (177) life cycle, including:

Every post we have published is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Comparing our first three months of existence to now, we have seen traffic on our site grow an amazing 474%!  Our subscriber base has more than tripled in the last three years!  We want to take this time to thank you, our readers and subcribers, for making that happen.  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan University, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

I also want to extend a special thanks to Jane Gennarelli, who has provided some serial topics, ranging from project management to coordinating review teams to what litigation support and discovery used to be like back in the 80’s (to which some of us “old timers” can relate).  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 999 previous posts.  Now is your chance to catch up!  😉

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Transparency Reports for Other Companies – Social Tech eDiscovery

Over the past couple of weeks, we’ve taken a fresh look at Twitter’s Law Enforcement Policies and their latest Transparency Report to show government requests for data, looked at (for the first time) LinkedIn’s Privacy and Law Enforcement Data Request Guidelines and Transparency Report and, yesterday, looked at Facebook’s policies and Government Request Reports.  Today, we will look at Transparency Reports for other companies.

Many other high profile companies also provide reports showing government requests for data, not just social media companies.  Some, like Google, provide a highly interactive report to navigate to various types of requests, ranging from government requests to remove data to requests for information about their users.  Others, like Apple, provide a simple one page letter with broad ranges of information requests and accounts affected (Apple’s latest letter is over a year old).  Some are current (through the end of 2013 at least), others have not been updated to reflect data since the end of 2012.  Evidently, some companies take transparency more seriously than others!  With that in mind, here are links to reports for various high profile technology companies where you might have data:

I tried to pull up the Transparency Report for Pinterest, but the link immediately redirects to their help page, so it’s only transparent if you can read really fast!

Obviously, in these modern times, our data (both personal and professional) is stored by a number of companies and law enforcement entities will request data from those companies for investigative purposes.  It’s a good idea to know how those companies respond to those requests and what rights you have as a customer.

So, what do you think?  Have you needed to request user information from any high profile technology companies for litigation purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Facebook’s Policies and Government Request Reports – Social Tech eDiscovery

Two weeks ago, we took a fresh look at Twitter’s Law Enforcement Policies and their latest Transparency Report to show government requests for data, then last week (for the first time), we looked at LinkedIn’s Privacy and Law Enforcement Data Request Guidelines and Transparency Report.  This week, we’ll take a look at Facebook’s policies and Government Request Reports.

We originally looked at Facebook’s law enforcement policies back in 2010 – this policy was updated extensively by the time we looked at it again in 2012.  The good news is that the policy has remain largely unchanged since our last look – the main difference is the option to submit records requests online as well as via email, snail mail or fax (you still have to be a law enforcement officer to submit the request).

Facebook, similar to Twitter and LinkedIn, posts biannual Transparency Reports, however the company uniquely calls them “Global Government Request Reports”.  Facebook began publishing these reports last year, and posted the first one on June 30, 2013 for the first six months of 2013 – the latest report available is for the last six months of 2013.  The main page gives you an interactive map to click on to select a continent, then you can select a country for which get a specific report.  Or, you can download the entire report as a comma-separated values (.CSV) file to review all of the countries at once.

The downloaded entire report covers: 1) The countries that requested information from Facebook about their users, 2) The number of requests received from each of those countries, 3) The number of users/accounts specified in those requests, and 4) The percentage of these requests in which Facebook was required by law to disclose at least some data.  It also includes instances in which Facebook has removed content that governments have identified as illegal (e.g., posts denying the holocaust are illegal in Germany).  If you select the country individually via the interactive map, you also get a breakdown of the first three numbers for the types of requests (e.g., Search Warrant, Subpoena, Emergency Disclosures, Other).

In the latest report, the US had 12,598 requests for user data (44.8% of the total of 28,147 worldwide), referencing 18,715 user accounts (47.6% of the total of 39,320 worldwide) and some data was produced in 81.02% of the requests.  The next highest country was India (3,598 requests involving 4,711 accounts).  We’re number one!

Facebook, like other social media platforms, continues to push the US government to allow more transparency in releasing specific numbers and types of national security-related requests. Colin Stretch, Facebook’s General Counsel, made an all-encompassing comment about the topic: “Government transparency and public safety are not mutually exclusive ideals. Each can exist simultaneously in free and open societies, and they help make us stronger. We strongly encourage all governments to provide greater transparency about their efforts aimed at keeping the public safe, and we will continue to be aggressive advocates for greater disclosure.”

You can get more information about the reports here and look at their FAQ page here.

What other sites have reports?  We’ll take a look at that tomorrow.

So, what do you think?  Have you needed to request information from Facebook for litigation purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

LinkedIn’s Transparency Report – Social Tech eDiscovery

Yesterday, we talked about LinkedIn’s Privacy and Law Enforcement Data Request Guidelines.  Like Twitter and other social media companies, LinkedIn also discloses a semi-annual Transparency Report to inform the public of the frequency and type of government requests the company receives regarding member data.  Let’s take a look.

With regards to the reporting, it’s worth noting that LinkedIn and other web-based companies cannot be fully transparent because of restrictions imposed on disclosing the number of national security-related requests received from the U.S. government. In A Letter to the LinkedIn Community, Erika Rottenberg, the Vice President, General Counsel and Secretary of LinkedIn, explains that, “we have been expressly prohibited by the U.S. government from disclosing the number of U.S. national security-related requests we receive, if any. This prohibition, which limits our ability to provide the transparency that we think our members and the public deserve, has been the source of great disappointment and frustration to us.”

In September 2013, LinkedIn filed legal challenges seeking the right to provide greater transparency into the number of national security-related requests they receive from the U.S. government. And last December they released, along with other technology companies, government surveillance reform principles that highlight government request transparency as a key part of necessary reform. In response to the legal challenges and advocacy of LinkedIn and other technology companies, the U.S. government officially changed its policy regarding the reporting of national security-related requests on January 27, 2014, to increase transparency (detailed in the articleGoogle, Yahoo and Linkedin disclose details on US National Security requests).

So, the Transparency Report isn’t as transparent as LinkedIn (and other providers) would like, but it’s better.

With that in mind, in the latest Transparency Report, covering the second half of 2013, there were 72 government requests for member data globally reported, with 56 of those (78%) coming from the US.   Requests actually dropped 13% from the first half of 2013 (from 83 to 72 globally and from 70 to 56 in the US – 20% drop).  Those requests impacted 110 member accounts globally, 90 of which were in the US (82%).  While requests dropped in the second half of 2013, the accounts affected rose from 97 to 110 (13% rise) globally and from 84 to 90 in the US (7%).  LinkedIn provides stats for the last two years on government requests for member data and member accounts impacted (at six month intervals).  In the most recent six months, LinkedIn provided data in response to overall requests 47% of the time (61% of the time to US requests).

Next week, we will take a look at Facebook’s policies and transparency.

So, what do you think?  Have you ever request information from LinkedIn for discovery purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

LinkedIn Has Privacy and Law Enforcement Data Request Guidelines Too – Social Tech eDiscovery

Last week, we discussed recent updates to Twitter’s Law Enforcement policies as well as Twitter’s latest Transparency Report to show government requests for data.  Today, let’s take a look at the Privacy Policy and Law Enforcement Guidelines for LinkedIn.

This is our first time to take a look at LinkedIn, which (as you probably know) is a business-focused social networking site, designed for professional networking.  On March 26th of this year, LinkedIn updated its Terms of Service, which include its Privacy Policy and User Agreement, in part because they acquired Pulse, a mobile app, and SlideShare, a sharing platform for business documents, videos and presentations. As a result, LinkedIn integrated SlideShare and Pulse’s Terms of Service into one unified agreement.

The Privacy Policy is broken into four main sections: 1) What information we collect, 2) How we use your personal information, 3) Your choices & obligations and 4) Other information.  In the “How we use your personal information”, LinkedIn notes that “It is possible that we may need to disclose personal information, profile information, or information about your activities as a Member or Visitor when required by law, subpoena, or other legal process” as well as to investigate potential illegal activities, enforce the User Agreement or exercise the rights of LinkedIn or its members.  With regard to notifying users about these requests, LinkedIn states they “attempt to notify Members about legal demands for their data when appropriate in our judgment, unless prohibited by law or court order or when the request is an emergency” and they “may dispute such demands when we believe, in our discretion, that the requests are overbroad, vague or lack proper authority”.

In the “Your choices & obligations” section, LinkedIn’s policies regarding the access rights and information on closing members’ accounts are similar to those of Facebook andTwitter. If members close their account, their information will be removed within 24 hours, and LinkedIn delete closed account information and de-personalizes logs and other backup information within 30 days (unless required for legal obligations, meeting regulatory requirements, resolving disputes, and preventing fraud and abuse).

LinkedIn’s Law Enforcement Guidelines are kept in a separate PDF document.  The Guidelines answer questions such as the type of data requests you can make, your contact information that you must provide, information being requested, types of data that might be available, whether members will be notified that their information is being requested, non-US requirements, etc.  LinkedIn only accepts Data Requests, such as subpoenas and search warrants; Preservation Requests, in connection with official criminal investigations; and Emergency Requests, using the Emergency Request Form on the last page. You can only submit requests via fax, certified mail, express courier or in person, NOT online.  What, no horse and buggy?

Tomorrow, we will take a look at LinkedIn’s Transparency Report to see how many government requests they receive.  It will be here before you know it!

So, what do you think?  Have you ever had to request data from LinkedIn for a case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Twitter Remains Transparent Regarding Government Requests – Social Tech eDiscovery

Yesterday, we took an updated look at Twitter to see how it handles private information and law enforcement requests (such as subpoenas) and what has changed since our last look about two years ago.  Today, we will take a look at Twitter’s latest Transparency Report to show government requests for data over the last six months of 2013.

Transparency reports are typically issued by companies to disclose numerous statistics related to requests for user data, records, and website content. These reports indicate the frequency and authority that governments request data or records over the given period. Due to the creation of these reports, the public may be informed of the private information governments gain access to via search warrants, court subpoenas and other methods.  Many other major communication platforms provide Transparency Reports as well, such as Facebook, LinkedIn, Google and Microsoft.

Twitter began publishing Transparency Reports in 2012 (we took a look at their first one here) and has continued doing so every six months or so.  Twitter’s current format for their Transparency Report is divided into three categories: trends in government requests for account information, government requests for content removal, and copyright notices and is available for every reporting period since Twitter began publishing the report. The Transparency Report also offers insight as to whether or not Twitter acts upon the requests sent to the company.

The first category is Information Requests. This includes worldwide government requests for account information typically connected to criminal investigations. For the six month period from July 1 to December 31, 2013, Twitter had 1,410 information requests. Due partly to the influence of Twitter’s growing global expansion, this number is a 22% increase from the prior period; however, the United States still accounted for 59% of the total requests.

In the Removal Requests section, Twitter includes government requests and other complaints of illegal content from authorized reporters to remove or withhold its content. In the first half of 2013, there were a total of 60 requests. However, in the second half of 2013 this number was over five times greater – 377 requests!  Now that’s an upsurge!  309 of those requests came from one country – France.  The removal requests number does not include emergency disclosure report numbers, as this information cannot be disclosed to the general public at this time.

As for copyright notices, Digital Millennium Copyright Act (DMCA) takedown notices rose from 5,753 in the prior period to 6,680 – a 16 percent increase.  To find more information about Twitter’s Transparency Reports, you can review them online by clicking here.

Next week, we will take a look at how another platform – LinkedIn – handles privacy, law enforcement requests and transparency.

So, what do you think?  Do you feel that Twitter provides enough information in their report?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.