Trending: Social Media in eDiscovery

As social media has been working its way ever deeper into our relationships, professional activities, and culture, its impact on discovery has been growing as well. Unfortunately, the nature, diversity, and volume of social media data continue to present a variety of technical and legal challenges for practitioners. So, we are revisiting this topic – one of our most popular of last year – updated with new usage data, new revelations about available ESI, new rule amendments and cases, and more.

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Mobile Devices Wrap-Up – Mobile Device Discovery Series, Part 6

When considered together, the twelve cases we reviewed suggest a few key points to remember regarding mobile devices in eDiscovery: the fact that mobile devices are a novel or challenging source is no excuse to skip them; there will be potentially serious consequences for inadvertent losses from mobile devices, and there will be very serious consequences for intentional spoliation of mobile device data; and, it may be possible to establish the prior existence of lost text messages using phone records from the relevant wireless carrier. Read on to review the three other main key points from the case law as well as the key takeaways from our review of mobile devices in eDiscovery.

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Even More Mobile Devices Cases – Mobile Device Discovery Series, Part 5

In this case law survey, we are briefly reviewing a dozen cases from across the past five years that have touched on mobile device discovery issues.  We are reviewing them in chronological order: Stinson v. City of New York, No. 10 Civ. 4228 (S.D.N.Y. Jan. 2, 2016), NuVasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016), First Financial Security., Inc. v. Lee, No. 14-1843 (D. Minn. Mar. 8, 2016), Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN (S.D. Fla. Mar. 22, 2016), Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415 (S.D. Fla. Mar. 2, 2016), and Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS) (S.D.N.Y. Aug. 28, 2017).

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A New Mobile Devices Case Every Few Months – Mobile Device Discovery Series, Part 4

In this case law survey, we will briefly review a dozen cases from across the past five years that have touched on mobile device discovery issues.  We will review them in chronological order: E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., Garcia v. City of Laredo, Pradaxa Products Liability Litigation, Hosch v. BAE Systems Information Solutions, Inc., Small v. Univ. Med. Center of S. Nevada, and Rajaee v. Design Tech Homes.

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A New Collection Puzzle in Every Pocket – Mobile Device Discovery Series, Part 3

Because of the huge diversity in smartphone and tablet hardware and software, collecting from these sources poses special challenges and requires special tools.  These tools are collection kits akin to those used for forensic acquisitions from traditional computer sources, but they feature connection options for all of the common mobile standards and more specialized software for interfacing with the wide range of potential data formats, file systems, etc. When executing mobile device acquisitions, there are a range of options similar to those available when conducting traditional computer drive acquisitions.  Read on to learn more about the three types of acquisitions and the additional challenges presented by mobile device data after its acquisition.

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A Different Diary in Every Pocket – Mobile Device Discovery Series, Part 2

Smartphones are far and away the most used type of mobile device (57% of all digital minutes, compared to just 9% for tablets).  Because of their importance, most organizations want their employees to use them for work, and employees typically want to be able to work on them.  A majority of companies now have or are planning to adopt BYOD-friendly policies, and many organizations are planning to start requiring employees to bring their own device.  As a result, a BYOD organization will have a veritable cornucopia of different smartphones in use by its employees.

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A Supercomputer in Every Pocket – Mobile Device Discovery Series, Part 1

Today, the average smartphone “has more computing power than all of NASA when it put the first men on the moon in 1969.” The vast majority of your key players and other custodians will have one in their pocket. But what about business use?  As of 2015, 80% of people were using texting for business purposes.  Another survey found that, in 42% of financial services organizations, employees had requested authorization to use text messaging for business – double the 21% reported in 2016.  The same survey found that 83% of organizations now allow employees to use their personal devices for business communication. As a result, mobile devices are turning up frequently as relevant sources in litigation. Learn more about these trends and how they are growing into areas of concern.

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Social Media Summary – Gone Viral Series, Part 8

This multi-part series on how to overcome the technical and legal challenges raised by the involvement of social media sources and data in electronic discovery ends with a summary and set of key takeaways. This includes covering social media sources of ESI, the acquisition, authentication, spoliation, reliability of evidence and the ethical concerns therein.

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Ethics and Reliability in Social Media – Gone Viral Series, Part 7

In addition to the obvious need to not to intentionally spoliate or advise spoliation, the rise in the use of social media as evidence has developed ethics and reliability concerns for attorneys. Consequently, this rise in importance has led to additional questions that state bars have begun to address. Concerns are raised in the reliability of social media data gathered, as the Internet has seen a massive surge in deliberately fake content.  Some of it is intended only to entertain or advertise or get attention, but some of it is intended to sow confusion and misinformation.

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Spoliation of Social Media Evidence – Gone Viral Series, Part 6

An August 2016 review by X1 uncovered more than 9,500 cases from the preceding 12 months in which social media evidence played a significant role – growth of more than 50% over the prior year. The rise in the presence of social media in the courts has led to preservation and spoliation concerns. Social media evidence is more frequently being treated as a standard source–if relevant, it must be preserved and produced and not altered, deleted, or hidden. It is clear from the six cases covered in this article that, while parties and their attorneys may be struggling with social media, courts are very comfortable treating it like any other source of evidence: if relevant, it needs to be preserved and produced; and, under no circumstances should it be intentionally altered, deleted, or hidden.

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Social Media Evidence Authentication in the Courts – Gone Viral Series, Part 5

When looking at the authentication of social media evidence in the courts, we can focus on cases from Maryland and Texas. These were two of the first states to address these issues at the appellate level, and each staked out a different position that has since been followed by other states. The Maryland Rule embodies the fear of “voodoo information,” requiring a better demonstration of authenticity before the evidence can reach the jury, while the Texas Rule entrusts the disputed fact conclusions to the jury. The two approaches taken reflect the tension we reviewed in the previous part, between permissive rules and fearful judges.

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Authentication and Admissibility of Social Media Evidence – Gone Viral Series, Part 4

In order for any of the materials you have preserved and collected to be usable at trial, they will have to be admitted as evidence. When it comes to successfully admitting social media as evidence, the materials must be both authentic and admissible. The admissibility of the evidence looks at its relevance, possibility of prejudice, and status of hearsay. Likewise, a witness with knowledge providing authenticating testimony and considering distinctive characteristics of evidence are examples of ways to establish authenticity.

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