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eDiscovery Case Law: Social Media Posts Deemed Discoverable in Personal Injury Case

A Pennsylvania court recently ordered the plaintiff in a personal injury lawsuit to disclose social media passwords and usernames to the defendant for eDiscovery.

On May 19, the court ruled in favor of a motion to compel the plaintiff in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) to disclose his usernames, login names and passwords for Facebook and MySpace accounts that contained hidden or private posts. Discoverability of social media continues to be a hot topic in eDiscovery, as eDiscovery Daily has noted in summaries of prior cases here, here and here that reflect varied outcomes for requests to access social media data.

In Zimmerman v. Weis Markets, Inc., the court ruled in favor of the defendant’s motion for several reasons involving the plaintiff’s use of public social media as well as the circumstances of the case:

  • The plaintiff’s public postings on the social media sites in question included discussion of his injury, which was deemed relevant to his claim of serious and permanent impairment. These public postings were construed by the court as sufficient to demonstrate likelihood that his non-public postings would also contain relevant information about his injury.
  • Although, the court did not wish its decision in this matter to be viewed as authorizing “fishing expeditions” to private social media accounts in personal injury cases in general, it reasoned that since examination of the public portions of the plaintiff’s Facebook and MySpace accounts turned up relevant evidence on the subject of the plaintiff’s injury, discovery of the remaining private postings was also likely to do so.
  • The court also reasoned that the plaintiff’s choice to bring this issue to trial, as well as his decision to share information about his injury online (showing pictures of him in shorts with his scar visible, as well as recent pictures with his motorcycle), meant that he could not have a reasonable expectation of social media privacy.

Although courts often permit eDiscovery of private and hidden social media postings, this decision by the court illustrates a need for relevance of the evidence to be shown before that permission is granted.

So, what do you think? Was the court wrong in allowing eDiscovery of personal Facebook and MySpace accounts, or does the plaintiff in a personal injury case waive his right to social media privacy? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Think Before You Hit Send
 

It’s not the only instance of a one character typo possibly ending a career; instead, it may simply be the latest.

Unless you’re living under a rock, you’re probably aware of the “Twittergate” story involving Rep. Anthony Weiner (D-N.Y.), where he initially claimed that a lewd photo posted via Twitter was posted by a hacker to his account, then subsequently admitted this past Monday that he, in fact, posted that picture.  Many are calling for him to resign from his Congressional position after posting the picture, as well as sending other pictures, which have since been identified.  (If you have been living under a rock, you can click here for more on the story).

The irony is that a one-letter typo may turn out to be his undoing.  Weiner intended to send the “tweet” as a direct message to another Twitter user, but used the ‘@’ instead of the ‘d’ (to indicate a direct message) to reference that user.  As a result, the message was published to all his followers, not just the intended party.  In fairness, even if he had sent the direct message correctly, he used a public photo sharing service, yFrog, to share the photo, so anyone that chose to browse through all of his photos would have still seen the controversial photo.

It is easier to communicate than ever, with a myriad of options from which to choose, including voice, video, email, posts, texts and “tweets”.  Perhaps, it’s becoming too easy.  Courthouses are filled with cases where “informal” communications are key evidence in determining the outcome of the case.  The formal typed letter has given way to the informal media of email to the even more informal media of posts, texts and “tweets”.  Now, just as important as the adage “think before you speak” is the adage “think before you hit send”.

We’ve all been there, hopefully with much less disastrous consequences.  If you’ve never selected ‘Reply to All’ by accident instead of ‘Reply’ when intending to reply to only the sender, please call me and let me know your secret.  Or, maybe, you’ve sent an email when upset that you regretted later.  Once released, those mistakes are out there and are difficult (if not impossible) to recall.

If you’re not in the habit of doing so already, it’s a good idea to take a deep breath before each email sent or each post made and review what you’re about to send out into the world.  Think before you hit send.  If you don’t, you just might be the topic on a future ‘eDiscovery Case Law’ post on eDiscoveryDaily!  😉

So, what do you think?  Do you have any cases that are driven by informal communications?  Please share any comments you might have or if you’d like to know more about a particular topic.

Social Tech eDiscovery: Use of Smarsh for Social Media Archiving
 

The online world thrives on social media, but for attorneys who must preserve sensitive social media data for discovery, the widespread growth of social technology presents a laundry list of problems.

Not only is it challenging to trace the communications shared on popular sites like Facebook, LinkedIn and Twitter when privacy settings can be turned on and off at whim, it’s also difficult to know whether the information available at any given time is complete, as content can be edited by users at any time or lost due to technical malfunctions.

In some cases, like this example, courts have ruled that even locked or private content on Facebook and other social networking sites is not protected from being requested as part of discovery. In other cases, such as this one, they have ruled differently.  You don’t know for sure how courts will rule, so you have to be prepared to preserve all types of social media content, even possibly content that is changed frequently by users, such as Facebook profiles and blog posts.  And, even though Facebook has introduced a self-collection mechanism, it may not capture all of the changes you need.  And, other social media sites have not yet provided a similar mechanism.  If items are changed or lost after the duty to preserve goes into effect, your organization can be sanctioned with steep fines even receive an adverse inference judgment based on the information you are unable to produce.

Fortunately, there are viable solutions that enable you to create a backup of all social networking activity and archive such information in the event it has to be produced in discovery. Portland-based Smarsh has archiving and compliance tools, including social media archiving and compliance that automate the archiving of social media accounts, preserving all necessary data in case you need it later for discovery.

Some of the benefits of Smarsh’s social media archiving tools include:

  • A complete, logged, and quantifiable record of all social media posts and administrator activity
  • The ability to define which social media features your employees have access to and to track all business communications
  • Compliance with SEC and FINRA regulations (including Regulatory Notice 10-06)
  • The tools to identify and minimize risk, saving your business time, effort, and money

Smarsh has been designed to satisfy all regulatory compliance objectives, transforming the data management hazards of social media into a system that automatically updates and archives itself – an attorney’s dream when litigation strikes. This application creates a simple and proactive approach to archival of social media data, enforcing preservation to ensure that the duty to preserve is met.

So, what do you think?  Do you use Smarsh or any other social media archival tool?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Defendant Can’t Be Plaintiff’s Friend on Facebook

In Piccolo v. Paterson, Bucks County, Pa., Common Pleas Court Judge Albert J. Cepparulo denied the motion from the defendant requesting access to the photos of plaintiff Sara Piccolo posted in her Facebook account.

Piccolo filed an action against the defendants after being injured in a one-car accident while a passenger in a car driven by defendant Lindsay Paterson. According to the defense motion, filed by attorneys at Moore & Riemenschneider, Piccolo testified she had a Facebook account and was asked at deposition if the defense counsel could send a “neutral friend request” to Piccolo so that he could review the Facebook postings Piccolo testified she made every day.  Piccolo’s attorney, Benjamin G. Lipman , ultimately denied the request, responding that the “‘materiality and importance of the evidence … is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes'” the plaintiff.

The defense argued that access to Piccolo’s Facebook page would provide necessary and relevant information related to the claims by Piccolo and cited a case, McMillen v. Hummingbird Speedway, Inc. (previously summarized by eDiscoveryDaily here), in which the court ordered the plaintiff to provide his username and password to the defendant’s attorney. The plaintiff’s attorney argued that the defense had only asked for the pictures Piccolo posted on Facebook and that they had already been provided with “as complete a photographic record of the pre-accident and post-accident condition” of Piccolo.

As a result of the accident in May 2007, Piccolo suffered lacerations to her lip and chin when hit in the face with an airbag. She had 95 stitches to her face and then surgery to repair her scarring six months later. With permanent scars on her face, Piccolo allowed the insurer in 2008 to take photographs of her face and gave the defense 20 photos of her face from the week following the accident and five photos from the months just before the accident.

In Piccolo’s response to the defense motion, Lipman argued that defense counsel had only asked at Piccolo’s deposition about the pictures she posted on Facebook, not any textual postings. He said that the defendant had already been provided “as complete a photographic record of the pre-accident and post-accident condition” of Piccolo as she “could reasonably have a right to expect in this case.”

Judge Cepparulo agreed, ruling with the plaintiff and denying the defense access to Piccolo’s Facebook page in a one-paragraph motion.

So, what do you think?  Did the judge make the correct call or should he have issued a ruling consistent with McMillen?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Forecast for More Clouds
 

No, eDiscoveryDaily has not begun providing weather forecasts on our site.  Or stock forecasts.

But, imagine if you could invest in an industry that could nearly sextuple in nine years? (i.e., multiply six-fold).

Well, the cloud computing, or Software-as-a-Service (SaaS), industry may be just the industry for you.  According to a Forrester report from last month, the global cloud computing market will grow from 40.7 billion dollars in 2011 to more than 241 billion dollars by 2020.  That’s a 200 billion dollar increase in nine years.  That’s enough to put anybody “on cloud nine”!

The report titled Sizing The Cloud by Stefan Ried (Principal Analyst, Forrester) and Holger Kisker (Sr. Analyst, Forrester), outlines the different market dynamics for three core layers of cloud computing, as follows:

  • Public Cloud: From 25.5 billion dollars to 159.3 billion dollars by 2020;
  • Virtual Private Cloud: From 7.5 billion dollars to 66.4 billion dollars by 2020;
  • Private Cloud: From 7.8 billion dollars to 159.3 billion dollars by 2020.

Public cloud providers include everything from Facebook and Twitter to Amazon.com and Salesforce.com.  As the name implies, a private cloud is where companies implement their own cloud environment to support its own needs.  A virtual private cloud is simply a private cloud located within a public cloud.

Forrester is not the only analyst firm that expects big things for cloud computing.  The Gartner Group projected that the cloud computing industry will have revenue of 148.8 billion dollars by 2014, even higher than Forrester’s forecast of 118.7 billion dollars for the same year.  Clearly, the benefits of the cloud are causing many organizations to consider it as a viable option for storing and managing critical data.

What does that mean from an eDiscovery perspective?  That means a forecast for more clouds.  If your organization doesn’t have a plan in place for managing, identifying, preserving and collecting data from its cloud solutions, things could get stormy!

So, what do you think?  Is your organization storing more data in the cloud?  Does your organization have an effective plan in place for getting to the data when litigation strikes?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Cut and Paste Makes the Cut as Evidence
 

In United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), the defendant in a criminal case appealed his conviction and raised the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

Detective George Clifton, a member of the Miami–Dade Police Department's Sexual Crimes Bureau, posing as a male living with his girlfriend and his girlfriend's 14–year–old daughter, conducted instant message (IM) online chats with Keith Lanzon that led to Lanzon being arrested and charged with violating 18 U.S.C. § 2422(b), which provides that:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

Detective Clifton saved these conversations by copying the IM communications and pasting them into a Microsoft Word document, saving the Word document to a “floppy” disc, for printing in transcripts. While Detective Clifton did not save any of the IM conversations in their original format, he did compare the actual IM "chat screens" to the Word document he had created to verify that the Word document exactly matched the IM conversations.

At trial, the prosecution introduced the Word document with the cut-and-pasted IMs, and Lanzon was convicted.  Lanzon appealed to the US Eleventh Circuit Court of Appeals, claiming, inter alia, that the document was improperly admitted, and that the admission of the document violated the Due Process Clause and the Best Evidence Rule.  Lanzon also argued the transcripts violated the rule of completeness in FRE 106 claiming that Detective Clifton failed to include the entire chat transcript, including only the edited portion that supported his case.  FInally, Lanzon claimed that the prosecution failed to properly authenticate the Word document.

The Eleventh Circuit found that Lanzon failed to prove bad faith by the government in failing to preserve the original IMs. The court also rejected Lanzon's rule of completeness argument, finding that “There is no indication that additional parts of the conversation exist.”

As for the failure to authenticate claim, the Eleventh Circuit also rejected that claim, finding that “Evidence may be authenticated through the testimony of a witness with knowledge. FRE 901(b)(1). The proponent need only present enough evidence "to make out a prima facie case that the proffered evidence is what it purports to be.”

A copy of the opinion can be found here.

So, what do you think?  Have you dealt with a case involving evidence cut and pasted into a document?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Usefulness of Facebook’s Self Collection Mechanism
 

We’ve written about Facebook a lot on this blog.  Shortly after this blog was launched, we provided information on Facebook’s subpoena policy.  We’ve also talked about the eDiscovery implications associated with the rollout of Facebook’s new email messaging system, dubbed “Facemail”.  And, just last week, we chronicled a case involving Facebook where they were ordered to produce documents instead of just merely providing access to them.  And, we haven’t even mentioned the latest revelations that Facebook may have secretly hired a PR firm to plant negative stories about Google (oops, we just did!).

But perhaps our most popular post regarding Facebook was regarding the self collection mechanism that they rolled out last October, which we found out about via our LegalTech interview with Craig Ball published back in March after our February interview (Craig also wrote an article about the feature in Law Technology News in February).

Now, another article has been written about the usefulness of Facebook’s self collection mechanism (called “Download Your Information”) in the blog E-Discovery Law Alert, entitled How Useful is Facebook's "Download Your Information" Feature in E-Discovery?, written by Patrick V. DiDomenico.

The author of this article conducted a test by downloading his information via the utility, deleting some information from his Facebook profile – “an email message, some wall posts, comments, photos, and even a friend (not a close friend)” – hopefully, he added the friend back.  Then, he downloaded his information again, every day for four days, with no change for the first three days.  On the fourth day, most of the deleted information disappeared from the download, except the email message (which disappeared when he ran the utility one more time).

The conclusion was that the mechanism “does not appear to ‘look back’ and recover deleted information in the user’s account”.  Thoughts:

  • With no change in the download in the first three days, the author notes that “Facebook did not take a fresh snapshot of my account every day – it just re-downloaded the same file three days in a row”.  He doesn’t mention whether he added any content during this time.  It would be interesting to see if that would force a change.
  • I don’t believe that there is any specific documentation from Facebook as to how it handles additions and deletions and how often the snapshot is updated.  If not, it might behoove them to create some, it might save them some subpoena requests.
  • The author notes that “it is inadvisable for lawyers to rely solely on the Download Your Information feature for discovery of an adversary’s Facebook information” as it “gives no assurance that a litigant’s attempt to delete evidence will be revealed”.  On the other hand, it may be still an appropriate mechanism to use for your own discovery to preserve your own information.  Facebook may also store deleted information on backup tapes, so a subpoena could catch your opponent red-handed if you can justify the discovery of those tapes.  Food for thought.

So, what do you think?  Have you had any Facebook discovery requests in your eDiscovery projects?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Thought Leader Interview with Jeffrey Brandt, Editor of Pinhawk Law Technology Daily Digest
 

As eDiscovery Daily has done in the past, we have periodically interviewed various thought leaders in eDiscovery and legal technology to provide insight as to trends in the industry for our readers to consider.  Recently, I was able to interview Jeffrey Brandt, Editor of the Pinhawk Law Technology Daily Digest and columnist for Legal IT Professionals.

With an educational background in computer science and mathematics from the University of Pittsburgh, Jeff has over twenty four years of experience in the field of legal automation working with various organizations in the United States, Canada, and the United Kingdom.  As a technology and management consultant to hundreds of law firms and corporate law departments he has worked on information management projects including: long range strategic planning, workflow management and reengineering, knowledge management, IT structure and personnel requirements and budgeting. Working as a CIO at several large law firms, Jeff has helped bring oversight, coordination and change management to initiatives including: knowledge management, library & research services, eDiscovery, records management, technology and more. Most recently, he served as the Chief Information and Knowledge Officer with an AMLaw 100 law firm based out of Washington, DC.

Jeff has also been asked to serve on numerous advisory councils and CIO advisory boards for key vendors in the legal space, advising them on issues of client service and future product direction.  He is a long time member (and former board member) of the International Legal Technology Association (ILTA) and has taught CLE classes on topics ranging from litigation support to ethics and technology.

What do you consider to be the current significant trends in eDiscovery in 2011 and beyond on which people in the industry are, or should be, focused?

I would say that the biggest two are the project management component and, for lack of a better term, automated or artificial intelligence.

The whole concept and the complexities of what it takes to manage a case today are more challenging than ever, including issues like the number of sources, the amount of data in the sources, the format in which you’re producing, where can the data go and who can see it.  I remember the days when people used to take a couple of bankers boxes, put them in their car and go home and work on the documents.  You simply cannot do that today – the amount of information today is just insane.

As for artificial intelligence, as was discussed in the (Pinhawk) digest recently, you’re seeing the emergence of predictive coding and using computers to cull through the massive amounts of information so that a human can take the final pass.  I think more and more we’re going to see people relying on those types of technologies – some because they embrace it, others because there is no other way to humanly do it.

I think if there’s any third trend it would probably be where do we go next to get the data?  In terms of social media, mining Facebook and Twitter and all the other various sources for additional data as part of the discovery process has become a challenge.

You recently became editor of the Pinhawk Law Technology Daily Digest.  Tell me about that and about your plans for the digest.

Well, I think there are several things going forward.  My role is to keep up the good work that Curt Meltzer, the founding editor, started and fill the “big shoes” that Curt left behind.  My goal is to expand the sources of information from which Pinhawk draws.  There are about 400 sources today and I think by the time my sources (and possibly a few others) are added in, there will be over 500.  We’ve also talked about going to our readership and asking them “what are your go-to and must read sources?” to include those sources as well.  We’ll also be looking to incorporate social media tools to hopefully make the experience much more comprehensive and easier to participate in for the Pinhawk digest reader.

And, what should we be looking for in your column in Legal IT Professionals?

Well, I like to dabble in multiple areas – in the small consulting practice that I have, I do a little bit of everything.  I’ve recently done some very interesting work in communities of practice, using social media tools, focusing them inward in law firms to provide the forum for lawyers to open up, share and mentor to others.  I like KM (Knowledge Management) and related topics and we had a recent post in Pinhawk talking about the future of the law firm.  To me, those types of discussions are fascinating.

You take the extremes and you’ve got the “law factory”, you take the high-end and you’ve got the “bet the farm” law firm.  How technology plays a role in whatever culture, whatever focus a law firm puts itself on is interesting.  And then you watch and see some of the rumblings and inklings of what can be done in places like Australia, where you have third-party investment of law firms and the United Kingdom, where they are about to get third-party investment.  There was a recent article about third-party ownership of law firms in North Carolina.  You look at examples like that and you say “is the model of partnership alive?”  When you get into “big law”, are they really partnerships?  Where are they in the spectrum of a thousand sole practitioners operating under one letterhead to a firm of a thousand lawyers?  That’s where I think that communities of practice and social media tools are going to help lawyers know more about their own partners and own firms. 

It’s sad that in some firms the lawyers on the north side of the building don’t even know the lawyers on the south side of the building, let alone the people on the eighth floor vs. the tenth floor.  It’s a changing landscape.  When I got into legal and was first a CIO at Porter, Wright, Morris & Arthur, 250 lawyers in Columbus, Ohio was the 83rd largest law firm in the US – an AMLAW 100 firm.  Today, does that size a firm even make it into the AMLAW 250?

In my column at Legal IT Professionals, you’ll see more about KM and change management.  Another part of my practice is mentoring IT executives in how to deal with business problems related to the business of law and I think that might be my next post – free advice to the aspiring CIO.

This might sound odd coming from a technologist, but…it’s not really about the technology.  From a broad standpoint, you can be successful with most software tools.  A law firm isn’t going to be made or broken whether it chose OpenText or iManage as a document management tool or chose a specific litigation support tool.  It is more about the people, the education and the process than it is the actual tool.  Yes, there are some horrible tools that you should avoid, but, all things being equal, it’s really more the other pieces of the equation that determine your success.

Thanks, Jeff, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Jurors and Social Media Don’t Mix

Discovery of social media is continuing to increase as a significant issue for organizations to address, with more and more cases addressing the topic, including this one and this one that have reached various conclusions regarding the discoverability of social media.  However, when it comes to social media, courts agree on one thing: jurors and social media don’t mix.  Courts have consistently rejected attempts by jurors to use social technology to research or to communicate about a case, and have increasingly provided pre-trial and post-closing jury instructions to jurors to dissuade them from engaging in this practice.

A recent example of juror misconduct related to social media is this case, where one of the jurors actually attempted to “Friend” one of the defendants on Facebook.  With so much information at our disposal these days and so many ways to communicate, some jurors can be easily tempted to ignore court instructions and behave badly.

At its December 2009 meeting, the Judicial Conference Committee on Court Administration and Case Management (CACM) endorsed a set of suggested jury instructions for district judges to consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.  These proposed instructions were published in thisMemorandum in late January.  These instructions were designed to prevent jurors from two activities:

  1. Independently researching a case, including through the internet or other electronic means,
  2. Communicating about the case, including by electronic means such as email or social media sites such as Facebook.

Several states, such as California and New York, have crafted and adopted their own instructions to regulate the use of social media and other electronic means to research a case.  It seems like a “no-brainer” that every state will eventually be forced to promote or adopt such instructions.  Of course, it also seems like a “no-brainer” for jurors to refrain from such activities anyway, but I guess this is the world we live in today, right?

So, what do you think?  Does your state have standard jury instructions prohibiting social media use?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Facebook’s Self-Collection Mechanism

One of the most enlightening revelations resulting from my interview with Craig Ball at LegalTech (published last Friday) was regarding a feature that he mentioned which Facebook added late last year that allows any user to download their information.  I thought it was such a significant bit of information that a post dedicated to the feature (in addition to the coverage in the interview) was warranted.

This feature is available via the Account Settings menu and enables users to collect their wall posts, friends lists, photos, videos, messaging, and any other personal content, save it into a Zip file and download the Zip file.  Craig also wrote about the feature in Law Technology News last month – that article is located here.

When you initiate the download, especially if you’re an active Facebook user, it may take Facebook a while to gather all information (several minutes or more, mine took about an hour).  Eventually, you’ll get an email to let you know that your information is packaged and ready for download.  Once you verify your identify by providing your password and click “Download Now”, you’ll get a Zip file containing a snapshot of your Facebook environment in a collection of HTML files with your Wall, Profile and other pages and copies of any content files (e.g., photos, videos, etc.) that you had uploaded.

Think about the significance of this for a moment.  Now, 500 million users of the most popular social network on the planet (which includes not just individuals, but organizations as well) have a mechanism to “self-collect” their data for their own use and safekeeping.  Or, they can “self-collect” for use in litigation.  In his article, Craig likens Facebook’s download function to Staples’ famous easy button.  How can an attorney argue an overly burdensome collection when you simply have to click a button?

With a social network behemoth like Facebook now offering this feature, will other social network and cloud solution providers soon follow?  Let’s hope so.  As Craig notes in his article, “maybe the cloud isn’t the eDiscovery headache some think”.  Spread the word!

So, what do you think?  Have you been involved in a case that could have benefited from a cloud-based self-collection tool?   Please share any comments you might have or if you’d like to know more about a particular topic.