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Home Depot’s “Extremely Broad” Request for Social Media Posts Denied – eDiscovery Case Law
 

In Mailhoit v. Home Depot, CV 11 03892 DOC (SSx) (C.D. Cal.; Sept. 7, 2012), Magistrate Judge Suzanne Segal ruled that the three out of four of the defendant’s discovery requests failed Federal Rule 34(b)(1)(A)’s “reasonable particularity” requirement, were, therefore, not reasonably calculated to lead to the discovery of admissible evidence and were denied.

Case Background

The plaintiff had been a manager of the defendant's store in Burbank, California, and filed a suit against her employer after being fired, charging unlawful discrimination based on gender, as well as failure to accommodate her known physical disability.  The plaintiff testified at her deposition that she suffers from post traumatic stress disorder, depression and isolation, and has cut herself off from communication with friends because of Defendant’s alleged wrongdoing.  The defendant argued “that it is entitled to Plaintiff’s communications posted on social networking sites (“SNS”) such as Facebook and LinkedIn to test Plaintiff’s claims about her mental and emotional state.”

Defendant’s Motion to Compel

The defendant filed a Motion to Compel Further Responses to Defendant’s Request for Production of Documents, which included a request for (among other things):

“Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005(the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state”.

The defendant also requested “[t]hird-party communications to Plaintiff that place her own communications in context”, “[a]ll social networking communications between Plaintiff and any current or former Home Depot employees” and any pictures posted to the plaintiff’s profile or otherwise linked via tagging.

Judge Rules against Defendant in Three of Four Categories

Judge Segal noted that “while a party may conduct discovery concerning another party’s emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.  A court can limit discovery if it determines, among other things, that the discovery is…unreasonably cumulative or duplicative”.  Since Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity”, Judge Segal ruled that “three of the four categories of SNS communications sought by Defendant fail Rule 34(b)(1)(A)’s ‘reasonable particularity’ requirement”, only granting the defendant’s request for social networking communications between Plaintiff and any current or former Home Depot employees.

So, what do you think?  Should the defendant’s requests have been denied, or were they “unreasonably cumulative”?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to the Ride the Lightning blog for the tip on this case!

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.

eDiscovery Daily is Two Years Old Today!
 

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog.  Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom?   Maybe.  Or maybe not.  Wouldn’t that be fun!

As we noted when recently acknowledging our 500th post, we have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!  We now have nearly seven times the visitors to the site as we did when we first started.  We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Litigation Support Blog.com, Litigation Support Technology & News, Ride the Lightning, InfoGovernance Engagement Area, Learn About E-Discovery, Alltop, Law.com, Justia Blawg Search, Atkinson-Baker (depo.com), ABA Journal, Complex Discovery, Next Generation eDiscovery Law & Tech Blog 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!

We like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

We talked about best practices for issuing litigation holds and how issuing the litigation hold is just the beginning.

By the way, did you know that if you deleted a photo on Facebook three years ago, it may still be online?

We discussed states (Delaware, Pennsylvania and Florida) that have implemented new rules for eDiscovery in the past few months.

We talked about how to achieve success as a non-attorney in a law firm, providing quality eDiscovery services to your internal “clients” and how to be an eDiscovery consultant, and not just an order taker, for your clients.

We warned you that stop words can stop your searches from being effective, talked about how important it is to test your searches before the meet and confer and discussed the importance of the first 7 to 10 days once litigation hits in addressing eDiscovery issues.

We told you that, sometimes, you may need to collect from custodians that aren’t there, differentiated between quality assurance and quality control and discussed the importance of making sure that file counts add up to what was collected (with an example, no less).

By the way, did you know the number of pages in a gigabyte can vary widely and the same exact content in different file formats can vary by as much as 16 to 20 times in size?

We provided a book review on Zubulake’s e-Discovery and then interviewed the author, Laura Zubulake, as well.

BTW, eDiscovery Daily has had 150 posts related to eDiscovery Case Law since the blog began.  Fifty of them have been in the last six months.

P.S. – We still haven't missed a business day yet without a post.  Yes, we are crazy.

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.

eDiscovery Case Law: Twitter Loses Appeal in People v. Harris
 

As reported in the Gibbons E-Discovery Law Alert blog, Twitter filed an appeal of the trial court’s decision in People v. Harris with the Appellate Division, First Department in New York, arguing that Twitter users have the right to quash subpoenas pursuant to Twitter’s terms of service agreement as well as because defendants’ constitutional rights are implicated by a government-issued subpoena to a third party.  Unfortunately for Twitter, it didn’t take long for the appellate court panel to rule, as they denied Twitter’s motion for a stay of enforcement of the Trial Court’s order to produce Malcolm Harris’s tweets last week.

Attempts to Quash the Subpoena Fail

Back in April, Harris, an Occupy Wall Street activist facing criminal charges, tried to quash a subpoena seeking production of his Tweets and his Twitter account user information in his New York criminal case.  That request was rejected, so Twitter then sought to quash the subpoena themselves, claiming that the order to produce the information imposed an “undue burden” on Twitter and even forced it to “violate federal law”.

Then, on June 30, New York Criminal Court Judge Matthew Sciarrino Jr. ruled that Twitter must produce tweets and user information of Harris, noting: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist…Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”  Judge Sciarrino indicated that his decision was “partially based on Twitter's then terms of service agreement”, which was subsequently modified to add the statement “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.”

Twitter Continues to Fight Ruling

After the ruling, the New York District Attorney filed an order for Twitter to show cause as to why they should not be held in contempt for failure to produce the tweets. Twitter responded by seeking the stay of enforcement pending the appeal.  Last week, Twitter was given a deadline by the Trial Court during a hearing on the District Attorney’s motion to produce Harris’s information by Friday September 14 or face a finding of contempt. Judge Sciarrino even went so far as to warn Twitter that he would review their most recent quarterly financial statements in determining the appropriate financial penalty if Twitter did not obey the order.

So, what do you think?  With the appeal denied, will Twitter finally produce the plaintiff’s information?  What impact does this case have on future subpoenas of Twitter user information?  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.

eDiscovery Case Law: Social Media Is No Different than eMail for Discovery Purposes
 

In Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012), Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

In this employment discrimination case, the defendants sought discovery from the plaintiff, including “all of Robinson's email and text message communications with current and former Jones Lang employees” and, most notably “all social media content involving Robinson since July 1, 2008, including photographs, videos, and blogs, as well as Facebook, linkedIn, and MySpace content that reveals or relates to Robinson's. "emotion, feeling, or mental state," to "events that could be reasonably expected to produce a significant emotion, feeling, or mental state," or to allegations in Robinson's complaint”.

In rendering his decision, Judge Papak referenced “[t]he most frequently cited and well-reasoned case addressing the discoverability of social media communications involving emotional distress” (E.E. O. C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010)).  In that case, Judge Papak noted that “the court recognized that social media can provide information inconsistent with a plaintiffs allegation that defendant's conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff s allegations of the severity of that distress.”

With the principles of the Simply Storage case in mind, Judge Papak ordered the plaintiff to produce:

“(I) any:

(a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff's own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to:

(a) any significant emotion, feeling, or mental state allegedly caused by defendant's conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant's conduct.”

Understanding the difficulty of establishing an appropriate level of discovery, Judge Papak stated “As Simply Storage recognized, it is impossible for the court to define the limits of discover in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production…Nevertheless, the court expects counsel to determine what information falls within the scope of this court's order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what "has and has not been produced and can challenge the production if it believes the production falls short of the requirements of this order."…Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiffs deposition or other discovery.”

So, what do you think?  Should all media be handled the same in discovery, or should there be differences?  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.

eDiscovery Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  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 499 previous posts.  Maybe you missed some?  😉

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.

eDiscovery Case Law: Twitter to Appeal Decision in People v. Harris
 

As reported by The Wall Street Journal, Twitter plans to appeal a court order requiring the company to produce messages posted by Malcolm Harris, an Occupy Wall Street activist facing criminal charges.  He was one of more than 700 people arrested last October when demonstrators marched onto the Brooklyn Bridge roadway.

Back in April, Harris tried to quash a subpoena seeking production of his Tweets and his Twitter account user information in his New York criminal case.  That request was rejected, so Twitter then sought to quash the subpoena themselves, claiming that the order to produce the information imposed an “undue burden” on Twitter and even forced it to “violate federal law”.

On June 30, in People v. Harris, 2011NY080152, New York Criminal Court Judge Matthew Sciarrino Jr. ruled that Twitter must produce tweets and user information of Harris, noting: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist…Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”

Judge Sciarrino indicated that his decision was “partially based on Twitter's then terms of service agreement. After the April 20, 2012 decision, Twitter changed its terms and policy effective May 17, 2012. The newly added portion states that: ‘You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.’”  So, it would be interesting to see if the same ruling would be applied for “tweets” and other information posted after that date.

“We're appealing the Harris decision,” wrote Benjamin Lee, Twitter's lead litigator. “It doesn't strike the right balance between the rights of users and the interests of law enforcement”.

Martin Stolar, the attorney representing Harris, praised Twitter's decision. "Privacy interests in the information age are a special category which has to be freshly looked at by the courts," he said in a statement. "We are pleased that Twitter sees the far-reaching implications of the ruling against Mr. Harris and against Twitter."

So, what do you think?  Will Twitter succeed in its appeal?  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.

eDiscovery Trends: Need to Catch Up on Trends Over the Last Six Weeks? Take a Time Capsule.
 

I try to set aside some time over the weekend to catch up on my reading and keep abreast of developments in the industry and although that’s sometimes that’s easier said than done, I stumbled across an interesting compilation of legal technology information from my friend Christy Burke and her team at Burke & Company.  On Friday, Burke & Company released The Legal Technology Observer (LTO) Time Capsule on Legal IT Professionals. LTO was a 6 week concentrated collection of essays, articles, surveys and blog posts providing expert practical knowledge about legal technology, eDiscovery, and social media for legal professionals.

The content has been formatted into a PDF version and is available for free download here.  As noted in their press release, Burke & Company's bloggers, including Christy, Melissa DiMercurio, Ada Spahija and Taylor Gould, as well as many distinguished guest contributors, set out to examine the trends, topics and perspectives that are driving today's legal technology world for 6 weeks from June 6 to July 12. They did so with help of many of the industry's most respected experts and LTO acquired more than 21,000 readers in just 6 weeks.  Nice job!

The LTO Time Capsule covers a wide range of topics related to legal technology.  There were several topics that have impact to eDiscovery, some of which included thought leaders previously interviewed on this blog (links to their our previous interviews with them below), including:

  • The EDRM Speaks My Language: Written by – Ada Spahija, Communications Specialist at Burke and Company LLC; Featuring – Experts George Socha and Tom Gelbmann.
  • Learning to Speak EDRM: Written by – Ada Spahija, Communications Specialist at Burke and Company LLC; Featuring – Experts George Socha and Tom Gelbmann.
  • Predictive Coding: Dozens of Names, No Definition, Lots of Controversy: Written by – Sharon D. Nelson, Esq. and John W. Simek.
  • Social Media 101 for Law Firms – Don’t Get Left Behind: Written by – Ada Spahija, Communications Specialist at Burke and Company LLC; Featuring – Kerry Scott Boll of JustEngage.
  • Results of Social Media 101 Snap-Poll: Written by – Ada Spahija, Communications Specialist at Burke and Company LLC.
  • Getting up to Speed with eDiscovery: Written by – Taylor Gould, Communications Intern at Burke and Company LLC; Featuring – Browning Marean, Senior Counsel at DLA Piper, San Diego.
  • LTO Interviews Craig Ball to Examine the Power of Computer Forensics: Written by – Melissa DiMercurio, Account Executive at Burke and Company LLC; Featuring – Expert Craig Ball, Trial Lawyer and Certified Computer Forensic Examiner.
  • LTO Asks Bob Ambrogi How a Lawyer Can Become a Legal Technology Expert: Written by – Melissa DiMercurio, Account Exectuive at Burke and Company LLC; Featuring – Bob Ambrogi, Practicing Lawyer, Writer and Media Consultant.
  • LTO Interviews Jeff Brandt about the Mysterious Cloud Computing Craze: Written by – Taylor Gould, Communications Intern at Burke and Company LLC; Featuring – Jeff Brandt, Editor of PinHawk Law Technology Daily Digest.
  • Legal Technology Observer eDiscovery in America – A Legend in the Making: Written by – Christy Burke, President of Burke and Company LLC; Featuring – Barry Murphy, Analyst with the eDJ Group and Contributor to eDiscoveryJournal.com.
  • IT-Lex and the Sedona Conference® Provide Real Help to Learn eDiscovery and Technology Law: Written by – Christy Burke, President of Burke and Company LLC.

These are just some of the topics, particularly those that have an impact on eDiscovery.  To check out the entire list of articles, click here to download the report.

So, what do you think?  Do you need a quick resource to catch up on your reading?  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.

eDiscovery Trends: How Many Requests for User Information is Twitter Receiving? It’s Transparent.
 

As illustrated in the example we posted Tuesday, Twitter continues to receive requests from government agencies for user information (often related to litigation).  How many are they receiving?  Now, you can find out, simply by clicking on their new Transparency Report page to see the number of requests they have received.

Starting for the first six months of this year, Twitter’s report will be issued every six months and provides information in three areas:

  • Government requests received for user information;
  • Government requests received to withhold content; and
  • DMCA takedown notices received from copyright holders.

Twitter provides a table for each category.  For the government requests categories (first two sections), it shows requests by country.  In the User Information Requests table, it’s notable that, out of 849 total user information requests for the first half of 2012, 679 were requested by US government entities (we’re so litigious!).  They also provide stats for percentage of the requests where some or all information was produced and a count of users/accounts specified.  Here are some observations:

  • There were 849 total user information requests for the first half of 2012, 679 coming from US government entities.  The only other countries that had more than 10 requests were: Japan (98), Canada (11) and the United Kingdom (11).
  • Information was produced in 63% of those requests, 75% of the time for US requests.  Interestingly enough, only 20% of Japan’s 98 requests resulted in information produced.
  • The 849 total user information requests for the first half of 2012 specified 1,181 user accounts in those requests, with the 679 US requests specifying 948 user accounts.

Twitter notes that their report is inspired by Google’s own Transparency Report (click here to see their Transparency Report page and here to see user data requests they receive from government agencies and courts for a selected six-month period, starting with July through December 2009).  Early versions of the report don’t show the percentages of user data requests they comply with or the number of users or accounts about which data was requested.  But, it’s interesting to note that since Google began tracking requests, they have risen from greater than 12,539 in July through December 2009 to greater than 18,257 in July through December 2011, a 46% rise in two years.  It will be interesting to see if the number of Twitter requests rises in a similar fashion.  I’m betting yes.

Of course, there’s a protocol to follow if you’re a government entity or law enforcement organization requesting private information from Twitter as we detailed back in April.

So, what do you think?  Is this useful information?  Would you have expected more or less information requests to Twitter?  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.

eDiscovery Case Law: “Tweets” Are Public and Must Be Produced, Judge Rules
 

First, Malcolm Harris tried to quash a subpoena seeking production of his Tweets and his Twitter account user information in his New York criminal case.  That request was rejected, so Twitter then sought to quash the subpoena themselves, claiming that the order to produce the information imposed an “undue burden” on Twitter and even forced it to “violate federal law”.  Now, the criminal court judge has ruled on Twitter’s motion.

On June 30, in People v. Harris, 2011NY080152, New York Criminal Court Judge Matthew Sciarrino Jr. ruled that Twitter must produce tweets and user information of, Harris, an Occupy Wall Street protester, who clashed with New York Police back in October of last year and faces disorderly conduct charges.

Noting that “The court order is not unreasonably burdensome to Twitter, as it does not take much to search and provide the data to the court.”, Judge Sciarrino provided an analogy regarding the privacy of the Twitter account information, as follows:

“Consider the following: a man walks to his window, opens the window, and screams down to a young lady, ‘I'm sorry I hit you, please come back upstairs.’ At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, ‘What did the defendant yell?’ Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.”

Continuing, Judge Sciarrino stated: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist…Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”

Judge Sciarrino indicated that his decision was “partially based on Twitter's then terms of service agreement. After the April 20, 2012 decision, Twitter changed its terms and policy effective May 17, 2012. The newly added portion states that: ‘You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.’”  So, it would be interesting to see if the same ruling would be applied for “tweets” and other information posted after that date.

Judge Sciarrino did note that the government must obtain a search warrant to compel a provider of Electronic Communication Service (“ECS”) to disclose contents of communication in its possession that are in temporary "electronic storage" for 180 days or less (18 USC §2703[a]).  So, he ordered “that Twitter disclose all non-content information and content information from September 15, 2011 to December 30, 2011” related to Harris’ account.

So, what do you think?  Did the judge make the right call or should Twitter have been able to quash the subpoena?  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.

eDiscovery Trends: X1 Social Discovery – Social Media Discovery for Professionals
 

According to EDDUpdate.com, social media will be eclipsing email as the primary discovery resource within three years.  Social media has become a normal part of our everyday life as we share our photos on Facebook, tweet news on Twitter, and make professional connections on LinkedIn.  We’ve previously covered social media archiving tools here, highlighting a firm named Smarsh, and the need for effective electronic discovery methods is only growing by the day.  As you can imagine, the sheer amount of content being generated is astounding.  Twitter CEO Dick Costolo announced on June 6th that Twitter had broken the 400 million tweet-per-day barrier, up 18% from 340 million back in March.  These aren’t simply meaningless ones and zeroes, either. X1 Discovery has information for 689 cases related to social media discovery from 2010 and 2011 linked on their website, making it clear just how many cases are being affected by social media these days.

With regard to ESI on social media networks, X1 Discovery features a solution called X1 Social Discovery, which is described as “the industry's first investigative solution specifically designed to enable eDiscovery and computer forensics professionals to effectively address social media content.  X1 Social Discovery provides for a powerful platform to collect, authenticate, search, review and produce electronically stored information (ESI) from popular social media sites, such as Facebook, Twitter and LinkedIn.”

We reached out to X1 Discovery for more information about X1 Social Discovery, especially with regard as to what sort of challenges faces a new tool developed for a new type of information.  For example, why isn’t support for Google+, Google’s fledgling social network, offered?  X1 Discovery Executive Vice President for Sales and Business Development, Skip Lindsey, addressed that question accordingly:

“Our system can be purposed to accommodate a wide variety of use cases and we are constantly working with clients to understand their requirements to further enhance the product.  As you are aware there are a staggering number of potential social media systems to be collected from, but in terms of frequency of use, Facebook, Twitter and Linkedin are far and away the most prominent and there is a lot of constant time and attention we provide to ensure the accuracy and completeness of the data we obtain from those sites. We use a combination of direct API’s to the most popular systems, and have incorporated comprehensive web crawling and single page web capture into X1 Social Discovery to allow capture of virtually any web source that the operator can access. Google + is on the roadmap and we plan support in the near future.”

So, who is going to benefit most from X1 Social Discovery, and how is it different than an archiving tool like Smarsh?  According to Lindsay:

“X1 Social Discovery is installable software, not a service. This means that clients can deploy quickly and do not incur any additional usage charges for case work. Our investigative interface and workflow are unique in our opinion and better suited to professional investigators, law enforcement and eDiscovery professionals that other products that we have seen which work with social media content. Many of these other systems were created for the purpose of compliance archiving of web sites and do not address the investigation and litigation support needs of our client base. We feel that the value proposition of X1 Social Discovery is hard to beat in terms of its functionality, defensibility, and cost of ownership.”

With so many cases requiring collection by experienced professionals these days, it seems appropriate that there’s a tool like X1 Social Discovery designed for them for collecting social media ESI.

So, what do you think?  Do you collect your own social media ESI or do you use experienced professionals for this collection?  What tools have you used?  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.