“It is better to remain silent and be thought a fool than to post on Facebook and remove all doubt.” Mark Tweet

1. “It is better to remain silent and be thought a fool than to post on Facebook and remove all doubt.” Mark Tweet

2. Want To Be My Friend? Social Media & Ediscovery • Jake McKee, Kroll Ontrack • November 20th, 2013

3. Discussion Overview • Why should Social Media be considered in discovery? • Where does discoverable Social Media reside? • What social media information is discoverable? • Learning to collections. • Social Media Best Practices

4. 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)

5. Social Media: not limited to personal communications • 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 • -Marketing Land, Game Over: Twitter Mentioned in 50% of Super Bowl Commercials, Facebook Only 8%, Google+ Shut Out (Feb. 2013) Typical websites now offer 4+ links to share on social media. • Many companies now leverage enterprise social networks for communications with the organization:

6. Why should Social Media be considered in discovery? • Social media is readily available anywhere, anytime—and with increasing efficiency—via: • Texts • Instant Messages • Chat Rooms • Blogs

7. “What a wee little part of a person’s life are his acts and his words! His real life is led in his head, and is know to none but himself and all his Face Book friends.” Mark Tweet

8. Wheredoes 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. Whatsocial media information is discoverable? social media data is discoverable

10. Whatsocial 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. Whatsocial 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. Whatsocial media information is discoverable? • The court’s protocol involved the following steps: • The court would appoint a special master forensic expert • Cell phonesand access codes for emails/social mediawere to be provided directly to the special master • Parties were asked to: collaborateon a questionnaire to identify devices and accounts relevant to special master’s inquiry; create instructions to define material to be collected by special master; and identify areas of dispute for court resolution • Special master was ordered to: supply information for court to determine in camera which responsive information to provide to defendant (carving out room for potential privilege claims by the EEOC) E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc., 2012 WL 5430974 (D. Colo. Nov. 7, 2012).

13. What social media information is discoverable 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 • Unless the divulgence is: • to an intended recipient of such communication or express permission from the sender is obtained

14. May I obtain contents of a user’s account from Facebook using a civil subpoena? “Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order. Parties to civil litigation may satisfy discovery requirements relating to their Facebook accounts by producing and authenticating contents of their accounts and by using Facebook’s "Download Your Information" tool, which is accessible through the "Account Settings" drop down menu.” http://www.facebook.com/help/133221086752707/

15. 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?

16. “When angry, count to four; when very angry, tweet!” Mark Tweet

17. Learning to Collection Text of post - not metadata • Metadata is data about data Key responsive metadata!

18. The Evidentiary Power of Social Media [Some social media collection tools are] now able to map a given location, such as a city block or even a full metropolitan area, and search the entire public Twitter feed to identify any geolocated tweets that have been made [within a specified timeframe] “ “ Source: http://blog.x1discovery.com/2013/02/21/live-social-media-evidence-capture-from-todays-vegas-strip-shooting/

19. 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

20. 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”

21. 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

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. 3. “Download Your Information” 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. 1. Unassisted Collection

24. 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

25. “I don’t give a damn for a man that can only tweet a word in one way.” #dumfella Mark Tweet

26. Social Media Best Practices Onus is on organizations to set policies regarding social media use in the workplace • Organizations should: • Control access • Monitor usage • Articulate clear policies • Ensure understanding • Update, disseminate and make information accessible

27. Social Media Best Practices • Develop a social media policy that clearly identifies what is and is not acceptable • No “one size fits all” approach • Policy reflects both 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

28. ACME Co. Social Media Policy

29. Social Media Best Practices • Possible policy elements include: • Clear guidelines on proper social media use • Consequences of non-compliance • Employee training • Specifics on what employees can and cannot divulge

30. 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 • Consider Social Media a data source in the discovery process

31. Jake McKee Kroll Ontrack Houston 281-639-0762 jmckee@krollontrack.com