Social Media Mining: Prospecting for Golden Nuggets Eastern District of Texas Bench Bar Conference 2015 Chip Molster – W INSTON & S TRAWN Melissa Smith – G ILLAM & S MITH Adam Allgood– M ORGAN L EWIS

Prevalence of #SocialMedia 2 Social Media Mining Introduction

Prevalence of #SocialMedia 3 Social Media Mining Introduction Monthly active Facebook users: 1.49 billion Population of U.S.: million Population of Entire World: 7.3 billion

There’s Gold in Them Thar Hills 4 Social Media Mining Introduction Pre-Litigation Litigation Discovery Jury Selection

Pre-Litigation 5 Social Media Mining Pre-Litigation

Where to Look 6 Social Media Mining Pre-Litigation Facebook – A social networking service where members can connect with friends and other people in their network, post links, comments, photos and videos and conduct public conversations by writing on members’ walls. It also allows members to post private messages not visible to the public. LinkedIn – A professional networking site where members can maintain connections with other members, establish connections with contacts of members in their network, give recommendations for members and be introduced to other members for help in job searches and other career-related goals. YouTube – An online video community that allows users to publicly post, share and view original videos, with a forum for user comments and a platform for creating individual channels. Twitter – A microblogging site where users post status updates in 140 characters or less through instant message, mobile text or the web. Pinterest – A content sharing site that allows members to pin images, videos and other objects to their pinboard. Google+ – A social networking service that introduces a “social layer” across Google services such as searches, Gmail or YouTube. WhatsApp – WhatsApp Messenger is a cross-platform mobile messaging app which allows you to exchange messages without having to pay for SMS.

Due Diligence 7 Social Media Mining Pre-Litigation

Ethical Considerations 8 Social Media Mining Pre-Litigation

Ethical Considerations 9 Social Media Mining Pre-Litigation Look But Don’t Touch – Absent consent, a lawyer shall not communicate with a person represented by another lawyer about the subject of the representation. See Rule 4.2 of ABA Model Rules of Professional Conduct. May access the public portions of a party’s or witness’s social media account, regardless of whether or not the party or witness is represented. May not access private or non-public portions of a represented party’s or witness’s social media account if the lawyer is required to “friend” or “follow” the account or account user. May “friend” or “follow” an unrepresented party or a witness on social media if the lawyer does not engage in deceptive behavior. Be Yourself – In the course of representing a client, a lawyer “shall not knowingly make a false statement of material fact or law to a third person.” See Rule 4.1 of ABA Model Rules of Professional Conduct. May not create a false identity in order to access a potential party or witnesses social media account. Don’t Throw Away Your Trash – A lawyer shall not unlawfully alter, destroy or conceal material having potential evidentiary value. See Rule 3.4(a) of ABA Model Rules of Professional Conduct. Once litigation is anticipated, a party’s duty to preserve information extends to material within its possession, custody, or control. See Federal Rule of Civil Procedure 37 advisory committee’s notes (2006). Avoid spoliation by actively preserving your client’s social media content. – “Taking Down” vs. Destroying Advise client to modify privacy settings.

Litigation Discovery 10 Social Media Mining Litigation Discovery

11 Social Media Mining Litigation Discovery Determining whether the user (typically the adversary or a witness) or the social media provider (likely a third party) is the right source for the desired ESI. Drafting appropriate document requests and interrogatories to reach relevant social media content through party discovery. Ditto for Rule 45 subpoenas to 3 rd parties.

Litigation Discovery 12 Social Media Mining Litigation Discovery Importance of litigation hold/preservation letters for social media. Ability to obtain information from smart phones, etc. Ability to obtain metadata.

Litigation Discovery 13 Social Media Mining Litigation Discovery Demonstrating the relevance of discovery requests for social media content. Responding to discovery requests for social media content. Assessing how to authenticate social media content for use in summary judgment motions or at trial.

What To Look For 14 Social Media Mining Litigation Discovery Posts, blogs, tweets, etc. - Every site has its own form of artifacts. Location of online presences – a simple Google search can get things started. Indications that relevant information may be screened off as private. Relationships with other potential witnesses or sources of information. Note: specialized tools may be required to locate, monitor, collect from and/or preserve certain sources.

How To Obtain 15 Social Media Mining Litigation Discovery Document Requests: Specify that the definitions of “document” and “ESI” include social media content. Include a separate document request that specifically seeks social media content. Specify in the instructions that documents and ESI must be produced with all available metadata.

How To Obtain 16 Social Media Mining Litigation Discovery Interrogatories: Request the identity of all social media platforms or accounts established, used or maintained by the responding party. Requests the identity of all accounts or addresses and networks that are related or associated with the responding party ’s social media accounts. All names, usernames or pseudonyms, commonly referred to as “handles,” associated with the responding party’s social media accounts (because social media sites typically do not require an account holder to use his legal name).

Subpoenas to Non-Party Social Media Providers Civil subpoenas may not always be enforceable due to provisions of: – The Stored Communications Act (18 U.S.C. § 2701) – The Electronic Communications Privacy Act (18 U.S.C. § 2510) However, some efforts have been successful. How To Obtain 17 Social Media Mining Litigation Discovery

Potential Pitfalls 18 Social Media Mining Litigation Discovery Ethical considerations – evidence must be properly obtained. Cannot be obtained through deception. Potential for inadvertent communication with subject – in some cases, simply viewing the content results in notification of owner. Admissibility – authenticity is a significant issue. Context - isolated posts may not tell the full story. Collection, preservation and review – traditional methods don’t always work. Specialized tools are sometimes ne eded.

Jury Selection 19 Social Media Mining Jury Selection

20 Social Media Mining Jury Selection 2015: It is estimated that more than 25 billion devices will be connected to the Internet by year end. 2020: 50 billion devices will be connected to the Internet. Jury Selection Is Getting Much Easier for lawyers competent in the use of technology for voir dire!

Jury Selection 21 Social Media Mining Jury Selection ABA formal opinion 466 gave lawyers who use social media such as Facebook, Twitter, LinkedIn, MySpace, Instagram, Pinterest, Youtube, and blogs the stamp of approval. Lawyers can use social media if the information is already public, but it doesn’t let attorneys “friend” a potential juror.

What To Look For 22 Social Media Mining Jury Selection Likes, dislikes, attitudes, beliefs (political and religious), life experiences Educational and professional backgrounds on sites like LinkedIn. „„“General social media activity, which may indicate whether prospective jurors are likely to seek information about the case outside of the trial record. Google maps / Property Values Past litigation and criminal history

Potential Pitfalls 23 Social Media Mining Jury Selection Know the information you care about and why Who is your model juror? Don’t believe everything you read because people sometimes boast or exaggerate online Those who clearly love social media might not be able to unplug for trial Jurors have mixed feelings about attorney investigations

Golden Nuggets 24 Social Media Mining Summary Utilize social media pre-litigation in order to analyze subject matter, potential parties, potential witnesses, and potential experts. – Look but don’t touch, be yourself, and don’t throw away your trash. Seek social media discovery in litigation, but be prepared to convince a judge of the relevance of such information. Research only publicly available information regarding potential jurors and be wary of the “super social” juror.

Thank You