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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.

eDiscovery Trends: Welcome to LegalTech West Coast 2012!
 

Today is the start of LegalTech® West Coast 2012 (LTWC) and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next two days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the Los Angeles area, come check out the show – there are a number of sessions (both paid and free) available and 69 exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which just announced today release of Version 11 of our linear review application, OnDemand®, and will be exhibiting at booth #216 along with our partners, First Digital Solutions.  Come by and say hi!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 19 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 AM – 12:00 PM:

A "Stormy" Subject…Exploring Cloud-Based eDiscovery

Can your organization better manage costs and increase control over discovery by bringing eDiscovery tools in-house or in-firm? What are the advantages and drawbacks of eDiscovery in the cloud? In this session, the panel will:

  • Explore insourcing v. outsourcing market trends
  • Discuss the pros and cons inherent in cloud/SaaS v. on premises e-discovery software solutions
  • Examine challenges when collecting and preserving discoverable data stored in the cloud

Speakers are: Scott Sachs, eDiscovery Attorney, Atkinson Andelson and Adam Sand, Associate General Counsel, Ancestry.com.  Moderator: Wayne Wong, Managing Consultant, Kroll Ontrack.

1:30 – 3:00 PM:

Under Fire: Defending and Challenging Technology-Assisted Review

Intelligent Review? Predictive Coding? Smart review? Whatever you call it, amidst growing data volumes and dwindling resources, traditional linear document review is quickly going the way of the dinosaur. In this session, the panel will:

  • Explore the "what", "why", and "how" behind  technology-assisted review
  • Discuss cutting-edge opinions from the bench
  • Provide you with tips to help overcome your organization's objections to using intelligent review technology

Speakers are: Tom Werner, Associate, Irell & Manella, LLP; Jeffrey Fowler, Partner, O'Melveny & Myers, LLP and Pallab Chakraborty, Director of eDiscovery, Oracle.  Moderator: Andrea Gibson, Product Director, Kroll Ontrack.

3:30 – 5:00 PM:

Exploring Hot eDiscovery Trends: FRCP Amendments, Social Media, and Emerging Case Law

eDiscovery evolves at the speed of light. If your organization is standing still, you are losing ground. In this session, the panel will:

  • Explore how eDiscovery evolved in 2011, with a look into how it will continue to change in the remainder of 2012
  • Analyze whether potential amendments to the Federal Rules of Civil Procedure are even possible, and what the amendments might entail discuss "hot" trends impacting eDiscovery such as social media.

Panelists are: Ron S. Best, EDD Staff Attorney & Director, Litigation Systems, Munger, Tolles & Olson, LLP and Eric Chan, Associate, O'Melveny & Myers, LLP.  Moderator: Joel Vogel, Vice President, Discovery Products and Services, Kroll Ontrack.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this year?  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: Twitter Seeks to Succeed Where Defendant Failed
 

Yesterday, we discussed a case where the court denied a criminal defendant’s attempt to quash a subpoena of his Twitter account information.  Now it’s Twitter’s turn to file a motion to quash the court’s order.  Filed this past Monday (May 7), the motion seeks to quash the order based on the grounds that the order imposes an undue burden on Twitter for three reasons including the reason that it forces them to “violate federal law”.

In People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.), the social network filed to quash a subpoena that ordered it to turn over “any and all user information” for Twitter-user Malcolm Harris between Sept. 15 and Dec. 31, 2011.

Twitter’s counsel argued that the order violates the Fourth Amendment, which guards citizens against unreasonable search and seizures, and would force the company to violate federal law.

Twitter also stated that the order does not comply with the Uniform Act, a stance the information network conveyed to Assistant District Attorney Lee Langston in March. “Pursuant to the Uniform Act, a criminal litigant cannot compel an appearance by, or production of documents from, a California resident without presenting the appropriate certification to the California court, scheduling a hearing and obtaining a California subpoena for production,” Twitter’s legal team said in the email response.

In its motion, the company even argued that, based on Twitter’s terms of service around content ownership (Twitter users own their content), Harris has legal standing to challenge the original subpoena; the court previously ruled that he did not.

“This is a big deal. Law enforcement agencies — both the federal government and state and city entities — are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet,” ACLU senior staff attorney Aden Fine said in a statement.

“[The Internet] is, in some ways, the ultimate embodiment of the First Amendment. But one potential problem for free speech on the Internet is that, for almost all of us, we need to rely on Internet companies. And while the government is bound by the First Amendment, the First Amendment may not always prevent private companies from restricting our free speech rights,” Fine said. “That is why it is so important that the public — and other companies — know when a company actually stands up for its users’ rights. Twitter did so here, and Twitter should be applauded for that.”

So, what do you think?  Does Twitter make some valid arguments and will they succeed where the defendant failed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: VentureBeat.

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: Court Denies Criminal Defendant’s Attempt to Quash Twitter Subpoena
 

In People v. Harris, 2011NY080152 (N.Y. Crim. Ct. Apr. 20, 2012), Criminal Court Judge Matthew A. Sciarrino, Jr. ruled that the defendant lacked standing to move to quash the prosecution’s subpoena served upon Twitter, a third-party in the case, for records of the defendant’s Twitter account. The defendant was a protester arrested during a march on the Brooklyn Bridge as part of the Occupy Wall Street movement, and in prosecuting the case, the prosecution sought his Twitter records for the time period relevant to the defendant’s involvement in the march.

In denying the defendant’s motion to quash, Judge Sciarrino analogized a subpoena issued to a third-party online social networking service like Twitter to one issued against a bank for a bank customer’s account information. The judge noted that in such bank cases a customer has “no proprietary or possessory interests” in his bank records, as they are the business records of the bank. Similarly, here, when the defendant signed up for Twitter, he agreed to certain terms, including a license that he granted to Twitter to “use, display and distribute” his Tweets. “Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his,” and therefore he had no proprietary interest in the Tweets.

Judge Sciarrino also acknowledged that although the defendant’s belief that he had a privacy interest in his own Tweets was “understandable,” it was “without merit.” The court pointed out that the “very nature and purpose” of Twitter is to help its users share information instantaneously with the world. Although a user may believe the Fourth Amendment should provide him online the same protection he would receive in his physical home, he is mistaken: Twitter users "may think that the same 'home' principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter. At the same time the user is also granting a license for Twitter to distribute that information to anyone, any way and for any reason it chooses."

Judge Sciarrino also denied the defendant’s motion to intervene in proceedings to quash the prosecution’s subpoena. It also found that the court is “compelled to evaluate the subpoena under federal laws governing internet communications,” that is, the Stored Communications Act; as such, the subpoena was proper because the defendant had a required hearing and notice, the information sought was relevant and material to the case, and the subpoena was not overly broad in its request.

So, what do you think?  Did the judge make the right call or should the defendant 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.

Case Summary Source: Applied Discovery (free subscription required).

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.