Social Networking & Ediscovery Want To Be My Friend? Jason Atchley, Legal Technologies, Kroll Ontrack October 24, 2013

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 2

3 Social Media: a staple in everyday communication 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  In October 2012, Facebook surpassed 1 billion users »Twitter reported 500 million users by February 2013 –Approximately two new members joining per second »Linkedin at 150 million users in Nielsen, State of the Media: The Social Media Report (2012)

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

Social Media Discovery: Why, Where, What, and Who

6 Why you should care about social media  Social media is readily available anywhere, anytime—and with increasing efficiency—via: »Texts »Instant Messages »Chat Rooms »Blogs

 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. 7 Why lawyers should care about social media

Where does discoverable social media reside? 8 »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 Court ordered production of data from Facebook and MySpace account: privacy is “wishful thinking” Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y.Sup. Sept. 21, 2010). Plaintiff ordered to preserve existing information on MySpace and Facebook: provide user names and passwords to opposing counsel McMillen v. Hummingbird Speedway, Inc., No CD (C.P. Jefferson Sept. 9, 2010). Court ordered production of user names and passwords: private portions of social media accounts are “fair game” Zimmerman v. Weis Markets, Inc., No. CV (C.P. Northumberland May 19, 2011). What social media information is discoverable? 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))  Early disputes: public versus private information »What about the private sections of your Facebook?

What social media information is discoverable? 11 Is everything discoverable? Courts are settled that social media is discoverable, but not how much is discoverable E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc., 2012 WL (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. Private Sections? Narrow Broad Mailhoit v. Home Depot U.S.A., Inc., 2012 WL (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.

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

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

14 Who do I seek information from when cooperation ceases? Seek court order to obtain party’s login information? Subpeona social networking site provider? Crispin v. Christian Audigier Inc., 717 F.Supp.2d 965. Zimmerman v. Weis Markets, Inc., No. CV McMillen v. Hummingbird Speedway, Inc., No CD. SCA

The How of Social Media Discovery  Authenticity Challenges  Learning to Collection

Authenticity Challenges 16 Nobody would post incriminating content on, right!?  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  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” - Image and article source: gas-siphoning Image and article source: burglar-who-posted-picture-on-facebook- sentenced/2011/05/04/AFoY4soF_blog.html

Authenticity Challenges 17 Posts mentioning the shooting & defendant’s gang Page references victim’s death and music played at victim’s funeral 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 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 The point at which a reasonable jury could have found that the MySpace pages were created and maintained by the defendant The state’s total circumstantial evidence S.W.3d 633 (Tex. Crim. App. Feb 8, 2012) Tienda v. State

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

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

Use ‘print screen’ to capture relevant information Screen/video capturing programs do exist  Nothing wrong with “old school” collection 20 Learning to Collection Unassisted Collection Simply ‘Googling’ a name works extremely well Flag other social media profiles he has for review Effective social media search tools 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’

21 Learning to Collection Unassisted Collection 1.

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  Facebook has a tool that can ease collection 22 Learning to Collection Unassisted Collection “Download Your Information” 2.

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

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  New tools in the ediscovery industry 24 Learning to Collection Social Media Collection Tools 3.

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

 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 26 Learning to Collection

Social Media Ethics

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  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 THOU SHALT NOT FALSE FRIEND

Social Media Tips: Lawyers are Social Creatures 29 Attorney wrote on blog that judge was: FL Bar reprimanded and fined the attorney: Lawyer asked for a continuance because of father’s death Facebook posts detailing her week of partying $1,200 “Evil, unfair, witch”

Social Media in the Workplace v.

 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: Social Media Policies on the Rise 31 »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

WA OR NV CA UT CO NMAR IL MI  Eleven states have passed laws prohibiting private 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 Social Media Policies on the Rise 32 MD

 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 Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012). “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” Implications: National Labor Relations Act 33 Employee Handbook

 Regulation FD prohibits companies registered under Section 12 of the Exchange Act from selectively disclosing material nonpublic information to 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 Implications: Regulation Fair Disclosure (FD) 34 “[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.”

 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 Implications: Federal Law 35 Eagle v. Moran et al., Civil Action No (E.D.Pa. Oct. 4, 2012).

 Serves as a baseline for appropriate corporate social media policies Social Media Tips: The NLRB’s “Model” Policy 36  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

Social Media Tips: Usage Policies 37  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

 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 38 Social Media Tips: Usage Policies Ultimately, there is no “one size fits all” approach!

Parting Thoughts

40  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