Social Networking & Ediscovery

1. Want To Be My Friend? Social Networking & Ediscovery • Jake McKee, Kroll Ontrack • September 12, 2013

2. Discussion Overview • Social Media Discovery: Why, Where, What, and Who • The How of Social Media Discovery • Authenticity challenges • Learning to social media collection • Social Media Ethics • In the Workplace • Parting Thoughts

3. Social Media: a staple in everyday communication • In October 2012, Facebook surpassed 1 billion users • Twitter reported 500 millionusers by February 2013 • Approximately two new members joining per second • Linkedin at 150 millionusers in 2012 Number of Active FB Users (millions) • In July 2012, Americans collectively spent 121 billion minutes using social media - almost a quarter of 521 billion minutes spent online • Compare to July 2011, where Americans spent 88.4 billion minutes using social media -Nielsen, State of the Media: The Social Media Report (2012)

4. Social Media: more than personal communication • More than 80% of companies are using social media to communicate with potential clients and drive new business. • -Worldcom, Corporate Social Media Spent to Increase Among B2B Companies Globally According to WorldcomSurvey(May 2011) • During Super Bowl XLVII, more than half of the ads shown mentioned Twitter or Facebook Many websites now offer 4+ links to share on social media! • -Marketing Land, Game Over: Twitter Mentioned in 50% of Super Bowl Commercials, Facebook Only 8%, Google+ Shut Out (Feb. 2013) • Many companies now leverage enterprise social networks for communications with the organization:

5. Social Media Discovery: Why, Where, What, andWho

6. Whyyou should care about social media • Social media is readily available anywhere, anytime—and with increasing efficiency—via: • Texts • Instant Messages • Chat Rooms • Blogs

7. Whylawyers should care about social media • Social media impacts all aspects of the practice of law and representation of clients: • Discovery – Social media data can be fully discoverable. • Trial – Social media data can be admissible as evidence. • Ethics – Dealing with social media raises unique ethical issues. • Policy Development – Corporations are looking to lawyers to help with social media policies. • Privacy – Because of the personal, yet public, nature of social media, diverse privacy concerns exist. • Licensing – A lawyer’s individual conduct on social media sites can impact admission and standing in the Bar.

8. Where does discoverable social media reside? • Comments & Messages • Tweets, wall comments, status updates, posts • Photos • Profile pictures, albums, pictures others tag you in • Videos • User Information • LinkedIn resume, things ‘liked,’ username, date of birth, location, employment & education info, groups joined • Metadata

9. What social media information is discoverable? Generally, social media data is discoverable

10. What social media information is discoverable? • Early disputes: public versus private information • What about the private sections of your Facebook? • You post User Content ... on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable. • - Romano v. Steelcase Inc. (citing Facebook’s privacy policy (last viewed June 18, 2009))

11. What social media information is discoverable? Is everything discoverable? Courts are settled that social media is discoverable, but not how much is discoverable Broad Narrow • E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc., 2012 WL 5430974 (D. Colo. Nov. 7, 2012): Reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information. • Mailhoitv. Home Depot U.S.A., Inc.,2012 WL 393063 (C.D. Cal. Sept. 7, 2012): The Federal Rules do not grant a “generalized right to rummage at will through information [a person] has limited from public view” absent a Rule 34 showing of “reasonable particularity” in request for data. Private Sections? Everything?

12. What social media information is discoverable? Text of post - not metadata • Metadata is data about data Key responsive metadata!

13. Whodo I seek information from when cooperation ceases? Does the Stored Communications Actprohibit production of social media? • Prohibits: • Electronic Communication Service (ECS) and • Remote Computing Service (RCS) providers • From: • knowingly divulging the contents of • a communication • it stores • Unlessthe divulgence is: • to an intended recipient of such communication or • express permission from the sender is obtained

14. Subpeonasocial networking site provider? Seek court order to obtain party’s login information? SCA • Zimmerman v. Weis Markets, Inc., No. CV-09-1535. • McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD. • Crispin v. Christian Audigier Inc., 717 F.Supp.2d 965. Whodo I seek information from when cooperation ceases?

15. The How of Social Media Discovery • Authenticity Challenges • Learning to Collection

16. Authenticity Challenges • Nobody would post incriminating content on , right!? • Syphoned gasoline from a police car • Posted a Facebook photo taken by his girlfriend “memorializing the crime” • Arrested for theft by unlawful taking • Updated his friends via status posting: “yea lol I went to jail over Facebook” • Stole hundreds in cash & computers • Posted a photo of himself on burglary victim’s Facebook page in which he held cash he’d stolen • Identified as robbery suspect and later sentenced to 44 months - Image and article source: http://www.washingtonpost.com/blogs/crime-scene/post/dc-burglar-who-posted-picture-on-facebook-sentenced/2011/05/04/AFoY4soF_blog.html - Image and article source: http://www.thesmokinggun.com/documents/facebook-police-gas-siphoning-764512

17. Authenticity Challenges Page references victim’s death and music played at victim’s funeral Tienda v. State Author wrote of electronic monitor – a condition of defendant’s house arrest Procedural Posture • Murder conviction appeal • Defendant challenges admissibility of postings on three MySpace pages admitted at trial on authenticity grounds • Court looks to circumstantial evidence Photos of defendant’s unique tattoos Posts mentioning the shooting & defendant’s gang Defendant’s e-mail addresses registered to MySpace acct Username = defendant’s nickname The point at which a reasonable jury could have found that the MySpace pages were created and maintainedby the defendant The state’s total circumstantial evidence - 358 S.W.3d 633 (Tex. Crim. App. Feb 8, 2012)

18. Learning to Collection • With social media data, all the standard discovery obligations apply, including the duty to preserve • Problems… • Changes very frequently • Stored on third-party servers • Security and privacy settings block access • Few reliable technologies available for social media preservation

19. Learning to Collection • Assume you discover that: • Your client has been sued and • Your client has relevant non-privileged information on his LinkedIn profile? • Your options: 3. Social Media Collection Tools 1. Unassisted Collection 2. “Download Your Information”

20. Learning to Collection • Nothing wrong with “old school” collection • Simply ‘Googling’ a name works extremely well • Flag other social media profiles he has for review • Effective social media search tools do exist • Use ‘print screen’ to capture relevant information • Screen/video capturing programs do exist • Create a log of exactly how and when you documented the webpage; this is essential for authentication • Hold on to the images! Profiles are ‘subject to change’ 1. 2. 3. 1. Unassisted Collection

21. Learning to Collection 1. Unassisted Collection

22. 2. “Download Your Information” Learning to Collection • Facebook has a tool that can ease collection • Navigate to the General Account Settings Page to • You then will get an ‘archive’ of that user’s Facebook account; as Facebook explains: • Is this everything you need? Maybe. It’s entirely possible that the scope of discoverable information may be broader than what’s included in the “archive” • Remember to document the process extensively 1. 2. 3. 1. Unassisted Collection

23. 2. “Download Your Information” Learning to Collection 1. Unassisted Collection

24. 2. 3. Social Media Collection Tools Learning to Collection • New tools in the ediscovery industry • Social media collection tools assist social media collection • Some platforms allow you to search social media sites • With credentials (court ordered or otherwise), or • From a third party perspective – you get to see what’s public • Some solutions allow you to add Boolean logic to search the data pool • E.g., “fired AND new york” • These programs leverage Facebook’s APIs enabling the collection of available metadata 1. 2. 3.

25. 2. 3. “Download Your Information” Social Media Collection Tools Learning to Collection 1. Unassisted Collection

26. Learning to Collection • Best Practices • Consider social media production problems (e.g. native format) upfront when negotiating at the Rule 26(f) meet and confer • Don’t try to collect social media without consent of the owner • Don’t get overwhelmed: consider enlisting the help of an investigator or service provider if a case size is massive or deadlines are tight • Communicate to your client the importance of prior postings to litigation and the far reaching repercussions of spoliation sanctions

27. Social Media Ethics

28. Social Media Tips: “False Friending” • A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent • NY State Bar Association – Formal Opinion 2010-2 • An attorney must disclose his true intentions when attempting to access social media, noting other ethical rules prohibit attorneys from engaging in dishonesty, fraud, deceit or misrepresentation • Philadelphia Bar Association Professional Guidance Committee – Ethics Opinion No. 2009-02 THOU SHALT NOT FALSE FRIEND

29. Social Media Tips: Lawyers are Social Creatures • Lawyer asked for a continuance because of father’s death $1,200 “Evil, unfair, witch” • Facebook posts detailing her week of partying

30. Social Media in the Workplace v.

31. Social Media Policies on the Rise • Onus is on organizations to set policies regarding social media use in the workplace • Proactive social media policies are increasingly popular among corporations, according to a July 2013 Littler Mendelson survey: • 64% of respondents created polices regarding employee social media use during work hours • 58% had rules for social media use on employer-issued devices • 52% had policies addressing employees discussing the company through their own social media channels • 10% screened applicants based on social media profiles

32. Social Media Policies on the Rise WA • Eleven states have passed laws prohibitingprivate employers from requesting or requiring that job applicants or employees provide log-in credentials for their personal social media accounts • Only 1% of the Littler Mendelson respondents request social media logins as part of hiring or onboarding process OR MI NV UT IL CO CA MD NM AR

33. Implications: National Labor Relations Act “Be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline” • Holding: NLRB found that the provision was overbroad; it “has a tendency” to inhibit protected employee activity in violation of Section 8(a)(1) of the National Labor Relations Act • Rationale: Concerted activities protesting Costco’s treatment of employees (protected) would be encompassed under this policy • Solution: Carve out exceptions for NLRA protections Employee Handbook Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012).

34. Implications: Regulation Fair Disclosure (FD) • Regulation FDprohibits companies registered under Section 12 of the Exchange Act from selectively disclosing material nonpublic informationto investors, analysts, etc. without concurrently making widespread public disclosure. • Includes information about earnings, mergers/acquisitions, new products, and changes in control or management. • Regulation FD applied to social media: • April 2, 2013 SEC Press Release • “[C]ompanies can use social media outlets like Facebook or Twitter to announce key information in compliance with [Regulation FD] . . . so long as investors have been alerted about which social media will be used to disseminate such information.”

35. Implications: Federal Law Eagle v. Moran et al., Civil Action No. 11-4303 (E.D.Pa. Oct. 4, 2012). • Terminated CEO alleging lost business opportunities • When plaintiff set up her LinkedIn account, she gave another employee her password according to internal policies • Employer used plaintiff’s password to change her LinkedIn profile to that of the new CEO as well as the password associated with the account • Searches for plaintiff resulted in the display of the incoming CEO’s name, photograph and new position • Holding: • Insufficient damages for claim under the Computer Fraud and Abuse Act • “Likelihood of confusion” element unmet under the Lanham Act • Employer wins on S/J, state actions go forward

36. Social Media Tips: The NLRB’s “Model” Policy • Serves as a baseline for appropriate corporate social media policies • As a starting point, employers should: • Avoid unrealistic mandates! • Distinguish between: • purely personal use of social media at work • social media use that furthers the interests of the company (such as contacting customers or marketing a product) • Encourage employees to refrain from personal use of social media while on work equipment, “unless it is authorized by [a] manager” or consistent with company policy.” Social Media Policy Updated: May 4, 2012

37. Social Media Tips: Usage Policies • Articulate clear policies: • Define appropriate workplace use • Inform employees that activity on company devices may be monitored • Encourage prudent posting: • Specify what employees can and cannot divulge • Posts should be honest, accurate, respectful and consistent with corporate ethics and harassment policies • Identify consequences of non-compliance • Train employees: • Couple social media policy with privacy awareness training

38. Social Media Tips: Usage Policies Ultimately, there is no “one size fits all” approach! • Policy should reflect corporate culture and law • Must understand: • Your company’s brand • Tolerance for dissent and risk • Relationship with workforce • Balance those factors with what the law requires/allows

39. Parting Thoughts

40. Parting Thoughts • Stay updated on social media—it will only continue to expand • Pay attention to case law, new legislation, and ethical guidance • Address social media challenges at every stage of the EDRM • Balance is key when it comes to social media usage policies