Tweeting Jurors Causing Judicial Headaches

Courts are struggling with rising social media misconduct by jurors, posing a threat to the fundamental guarantee of a fair trial.

Last November, the Federal Judicial Center published a report on Jurors' Use of Social Media During Trials and Deliberations, which concluded that despite various prevention efforts, jurors continue to use social media.

The Hon. Amy J. St. Eve, U.S. District Court Judge for the Northern District of Illinois recently conducted her own informal poll on this topic which was published just last week in the Duke Law & Technology Review called Ensuring An Impartial Jury In The Age Of Social Media. Her conclusion was that strong jury instructions on social media use does work.

Looking for 'Friends' You Can Count On?

People become friends for all kinds of reasons. Jonathan Ezor looks into the ethics of attorneys "friending" witnesses or opposing parties via social media such as Facebook to gain access to evidence in "False Friends: the Ethical Limits of Discovery via Social Media."

Ezor further investigates in what situations might evidence gathered through "false friending" be admissable -- even if the lawyer violated ethical rules. For private attorneys, state law could permit it.

Is it ever justifiable when dealing with social media to search beyond posts that are publicly available?

Image by Spencer E. Holtaway

Hitting the 'Like' Button for X1 Social Discovery

With Facebook membership passing 800 billion and Twitter at more than 300 million users, that's a lot of data to rummage through. Small wonder that social media discovery is an emerging area of interest for e-discovery practitioners and providers.

Enter X1 Discovery with its flagship product X1 Social Discovery, which was on display at the exhibit hall at LegalTech New York a few months after its October launch.

As John Waters writes, the software was "designed specifically to collect, index, search, and preview social media content generated by the three most popular systems: Twitter, Facebook, and LinkedIn." Among its vaunted features are its ability to preserve chain of custody with social network content and to capture and preserve its metadata.

Waters takes the product for a test drive in his article for LTN, "X1 Social Discovery Collects Data in Social Networks."

Image courtesy of X1 Discovery

Authentication of Social Media Evidence

Richard Raysman (partner, Holland & Knight) and Peter Brown, (partner, Baker & Hostetler), report that more than 250 million photos are uploaded daily on Facebook, in addition to links, blog posts and other content. Much of that material can be used to impeach parties and witnesses, they note — but due to the possibility of impersonation and digital fabrication, the content usually must be corroborated. They discuss recent caselaw in their article here, which appeared 11/11 in the New York Law Journal.

Image: Clipart.com 

X1 Social Discovery To Launch on October 18

John Patzakis, CEO of X1 Discovery and former president and CEO of Guidance Software, just announced the release of X1 Social Discovery. The software will collect, authenticate, search, review and produce data from popular social media sites, such as Facebook, Twitter and Linkedin. X1 delivers a litigation workflow from search and collection through production in searchable native format, while preserving critical metadata not possible through traditional image capture, printouts, or raw data archival of RSS feeds.

X1 Social Discovery establishes a defensible chain of custody. MD5 hash values of individual social media items are calculated upon capture and maintained through export. Automated logging and reports are generated. Key metadata unique to social media streams are captured through integration with APIs provided by the leading social media sites.

X1 also just released their whitepaper on the topic: "Overcoming Potential Legal Challenges to the Authentication of Social Media Evidence for eDiscovery."

With more than 700 million Facebook users and 200 million people with Twitter accounts, evidence from social media is quickly becoming relevant to just about every litigation dispute and investigation. This is just the beginning of a new wave of e-discovery products specifically designed to handle the challenges of  social media. 

Image: Clipart.com

Courts Struggle with Social Media Evidence

A recent article in the ALM's Connecticut Law Tribune provides a glimpse into the courts struggle with authenticating social media evidence. The Connecticut case discussed in the article was about using facebook postings to impeach the credibility of a witness. The witness claimed her account was hacked and the court accepted her theory and ruled the evidence inadmissible.

Authenticating social media evidence can be a slippery slope when lawyers bring up issues such as the security policy of the social media site, the security of the computer or device used to access the account, access controls on both ends and how the pages were collected for evidence.  For those reasons, computer forensic experts will play a role in authenticating social media evidence for the forseeable future.

The good news is that social media is just like any other form of electronically stored information - the only difference is that it is a new and unfamiliar technology to both lawyers and the courts. I expect many of the authentication challenges we are currently seeing will not be long lived as the courts become comfortable with it, social media sites strengthen there policies, and new e-discovery technology is developed to handle it. For now, fasten your seat-belts, it's could be a bumpy ride.

 

Twitter in Europe

Twitter in Europe presents the latest example of discovery of information about social media users colliding with free speech concerns. 

The issue involves a much reported affair between a British soccer player and a reality TV star.  British coverage is extensive – see here and here for a start. 

An article in The New York Times suggests that this “has quickly become another test over how far the rights to privacy and free speech extend online, where social media operate in countries with vastly different laws.”

The issue arose when the player obtained an injunction from a British court preventing the media from reporting the story of the alleged affair. Many Twitter users responded by repeatedly posting his name. The electronic discovery issue arose when the player sought a court order compelling Twitter to reveal the identities of the users who had posted his name. 

Need a Social Media Subpoena?

The Electronic Frontier Foundation has a handy list of law enforcement guides for the various social network sites. The information was obtained via FOIA requests. If you need information about how to subpoena one of the sites this is a great place to start.

https://www.eff.org/fn/directory/9210/419

Image: clipart.com

Easy Does It

In the April issue of Law Technology News, Craig Ball chronicles how Facebook has quietly created a one-button tool that captures a user's content on the social media site. 

"In short order, the user gets an e-mail advising that the information is packaged and ready for download," writes Ball. "Then, all the user need do is supply their password to verify their identity and click "Download Now." What arrives is a compressed local snapshot of the user's Facebook environment offering an easy-to-navigate interface. You can almost hear the voice from the Staples' ad saying, "That was easy."

Image: Staples

Join the Pizza After Party, Support eDiscovery Research!

The eDiscovery Institute is hosting its 5th Annual Gourmet  Pizza After Party* at the Newseum in Washington DC on Thursday, November 12th, 2009, after the Georgetown University Law Center Advanced eDiscovery Institute CLE  Program. It’s a great opportunity to interact and mingle with some of the leading e-discovery jurists, lawyers and providers. Last year’s party drew 150 participants, and it looks like this years party will have an even larger crowd.

This year’s sponsors include: Alix Partners, Aphelion Legal, BIA, Crowell Mooring, Encore Discovery, Epiq Systems, Guidance Software, Integreon Discovery Solutions, Jurinnov, Kroll OnTrack, Mayer Brown, Peak Discovery, Precision Discovery, Recommind, RenewData/Digital Mandate, Shook Hardy & Bacon, TCDI, UHY Advisors, and Winston & Strawn.

A "Tweet" of e-Discovery Found in "The Lost Symbol"

Ancient mysteries.

Masonic rituals.

Thrilling suspense.

E-discovery?

And Twitter?

After reading Dan Brown's follow up to The Da Vinci Code, The Lost Symbol, I found it interesting to see a tiny bit of e-discovery mentioned in his novel--so to speak. Even more surprising, Brown also cited the popular social media tool,Twitter, as well.

To not to give away any spoilers (and I won't), I will point out where e-discovery and Twitter come into play. However, to be on the safe side, it's probably best to do that after the jump.

The New Smoking Gun...Social Networking Sites

As I was getting the kids ready for their camps this morning, I was watching an interesting interview with a psychologist on our local news station.  They psychologist quoted numerous studies about human emotions and said that overwhelmingly the studies proved that people make decisions based on two of the seven emotions: pleasure and fear.  That is not surprising, but if you take a moment to truly think about it, it is eye opening in our world of e-discovery.  I believe the new e-discovery frontier is upon us...social networking sites where pleasure and fear are logged instantaneously and honestly.  In the world we live in today, everyone is linked instantaneously through numerous technologies.  Some even tweet their every minute, every emotion and every feeling.  I was visiting an acquaintance's facebook last week and she put on there "I am sick of this and I am leaving him." 

Social Networking and its Effects on eDiscovery

Social networking websites such as Facebook, MySpace, Linked In, Twitter ... (must I go on?) have taken the world by storm. At the present time, Facebook and MySpace alone are currently attracting around 115 million people to their respective sites each month.

Can social networking sites help (or hurt) your case?

As we have seen on MySpace and Facebook, millions of users daily chronicle the intimate details of their lives including posts of their current relationship status, feelings, opinions. Many even include photographs and videos documenting their lives. Even the professional networking site Linked In, is now trying to become more social by adding a blog application. Most users often don’t consider the evidence they are creating.

Tweet Tweet

I've created a Twitter ID for EDD Update - Check it out here:  http://twitter.com/eddupdate

Bob Ambrogi will be tellin' you everything you need to know about it in the December LTN, but I'll post a few links here shortly as well from others who have 'splained it.

Update: As promised --

From Stephen Nipper (http://twitter.com/nipper):
http://is.gd/4EDR
http://is.gd/4EDS
http://is.gd/4EDT
http://is.gd/4EDU
http://is.gd/4v94
http://is.gd/1d4Z
http://is.gd/4EEr

And here's Nicole Black's recent article, "Twitter 101 for Lawyers," from the Nov 3 issue of The Daily Record.  Download dr_11.3.08(3).pdf

Hat tip to Kevin O'Keefe: for Twitter Tips for Beginners: