social media and online investigation of claims

GGOLDBERG OLDBERG SSEGALLAEGALLA LLPLLPNEW YORK NEW JERSEY PENNSYLVANIA CONNECTICUT

Using Social Media in Discovery

Daniel W. Gerber

716.566.5469

© Goldberg Segalla LLP / 2010 ALL RIGHTS RESERVED

It all started 10 years ago...

Ignoranus:

A person who's both stupid and an...

What is Social Media?

• Public and Semi-Private networking activities conducted by individuals on the internet

• Accessed via home or work computers

• Content is generated by “User”

• Shared by the “Service Provider”

• Stored at the “Service Provider”

• Deleted by the “User”

Ask in discovery and depositions

• Do you have a computer, laptop or netbook? At home? At work?

– What do you use it for? – For job search?– Do you send e-mails to your doctor? – Have you ever gone into a chat room or

messenger?– Do you blog? Address?– Online e-mail (Yahoo, AOL, G-Mail)

Ask in discovery and depositions

• Use of PDA’s,

• Cell phones,

• I-phone,

• Text messages

• Tweet or Blog from phone?

Seek Authorizations

• Identification of Social Networking Sites

• Screen names

• Logon and Passwords

• Release of information from Social Networking Sites

Court Orders and Subpoenas

• Social Networking Sites Want to Appear to Protect Users – Good for Business

• Practical Reality – Thousands of Requests from Law Enforcement and Civil Litigation

• Networking Sites Want to Discourage Requests

• Facebook’s Deputy General Counsel Mark Howitson • Facebook is “looking for a fight”.  • Law enforcement officials and civil litigators request

information everyday.  • Public misunderstanding about legal responsibilities

to protect user’s privacy. • Facebook will not hand over any information on its

350 million users without a subpoena.• Even then the company will only provide basic

subscriber information unless that user gives his or her consent.

To (1) preserve information, and (2) obtain information. Send your subpoena or court order:

• FacebookAttn: Security Department1601 South California AvenuePalo Alto, CA 94304

Fax: 650.644.3229

* Facebook is only responding to CA subpoenas/orders

• With regard to civil matters, state court subpoenas must issue from a court within California or must be issued pursuant to the proper California court commission. Federal civil subpoenas seeking the production of documents must issue from the court in the district where the production is to be made. Please send the subpoena to subpoena@facebook.com or fax to 650-644-3229.

• In addition, Facebook requires a $150 processing fee per User ID. Checks can be made payable to Facebook, Inc. and can be sent to the attention of Facebook Security at 1601 S. California Ave., Palo Alto, CA, 94304, bearing the name and number of the case for which the fees are paid.

MySpace requires personal service of subpoenas in civil matters. MySpace will accept personal service at 2121 Avenue of the Stars, Suite 700, Los Angeles, CA 90067 between the hours of 9:30-12:30 and 2:30-5:30. Personal service will also be accepted at CSC locations throughout the state of California. For a list of California locations, please call 888-690-2882. All subpoenas should be addressed to the Custodian of Records for MySpace.com. Additionally, MySpace will only accept subpoenas from out-of-state civil litigants if they have been properly domesticated through a California court.

Source: http://lawyerist.com/subpoena-myspace-information/

The type of information MySpace can produce in response to a legal request is restricted by federal law. With a subpoena, MySpace may lawfully produce basic subscriber information and IP logs for a user’s account. MySpace is prohibited from lawfully producing the contents of a user’s private mail messages or stored content files held or maintained on behalf of a user to a any non-government entity, by the Stored Communications Act (“SCA”) 18 U.S.C. §§ 2702-2703. The materials protected from disclosure by Section 2702(a)(2) include MySpace user content including, but not limited to, friend lists, photos, blogs and private messages.

If these records are truly integral to the instant case, the clearly available mechanism for obtaining them is for the owner of the MySpace accounts in question to consent. For civil matters, this consent must be accompanied by a subpoena. To provide proper consent, MySpace requires that a user supply a signed statement containing the friend ID for the account, the password associated with the account, the user’s zip code, and the birth date provided to MySpace. You may also obtain an Order from the court compelling the owner of the account to consent to the disclosure of the emails in question.

The type of information MySpace can produce in response to a legal request is restricted by federal law. With a subpoena, MySpace may lawfully produce basic subscriber information and IP logs for a user’s account. MySpace is prohibited from lawfully producing the contents of a user’s private mail messages or stored content files held or maintained on behalf of a user to a any non-government entity, by the Stored Communications Act (“SCA”) 18 U.S.C. §§ 2702-2703. The materials protected from disclosure by Section 2702(a)(2) include MySpace user content including, but not limited to, friend lists, photos, blogs and private messages.

• Twitter conducts most correspondence via email, so please include an email contact so we may contact you.  To contact us, email: lawenforcement@twitter.com

• Only email from law enforcement domains is accepted.  Non-law enforcement requests should be sent through our regular support methods.  Non-law enforcement mail will be deleted.

• Twitter Inc.,Attn: [Civil Subpoena] 795 Folsom Street, Suite 600San Francisco, CA 94107

Plaintiff’s Duty

● Plaintiff has the same duty as defendant to preserve evidence post-incident.

Plaintiff’s ESI

• Online Incident Report?

• Online training?

• Job duties include a computer / laptop?

• Internet Storage of Work-related or Health-Related Data or Files?

• Send any work documents to internet e-mail or home account?

E-mails

• Patient to Physician and Vice Versa– Physician/Patient Privilege has been waived

• To or From– Friends– Co-workers or Supervisors– Union– Human Resources– Rehabilitation Facility– Your lawyer from a work e-mail account

E-mail Can Contain Social Media ActivityFrom: Facebook <notification+hkdkih5d@facebookmail.com> To: John Jablonski <jjablonski@goldbergsegalla.com> Date: Feb 22 2010 - 6:04pm Jeff Smith commented on Greg Jones’ status:

"Agree off the chart instant classic"

New Feature: Reply to this email to comment on this status.

To see the comment thread, follow the link below:http://www.facebook.com/n/?profile.php&v=feed&story_fbid=321889145779&id=762608870&mid=1ed0abeG3e2e6eb7G16b2d45G37

Thanks,The Facebook Team

___This message was intended for jjablonski@goldbergsegalla.com. Want to control which emails you receive from Facebook? Go to:http://www.facebook.com/editaccount.php?notifications=1&md=ZmVlZF9jb21tZW50X3JlcGx5O2Zyb209MTQ1NDY2NDg2Mjt1aWQ9MTA0MzIzMDM5MTtvd25lcj03NjI2MDg4NzA7b2lkPTMyMTg4OTE0NTc3OTt0bz0xMDQzMjMwMzkxFacebook's offices are located at 1601 S. California Ave., Palo Alto, CA 94304.

Employer Computer Systems May Contain Evidence of Online Activity

Stengart v. Loving Care Agency, Inc., Docket No. BER-L-858-08 (N.J. Super. Law Div., Feb. 5, 2009)

Held – emails on company server to lawyer were not privileged.

Court examined Employee Handbook – No expectations of privacy.

Liability – Stored Communications Act

SCA creates a criminal offense and civil liability for whoever "intentionally accesses without authorization a facility through which an electronic communication service is provided" or "intentionally exceeds an authorization to access that facility" and by doing so "obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system." 18 U.S.C. §2701.

Liability – Stored Communications Act

Van Alstyne v. Electronic Scriptorium Ltd., 560 F.3d 199 (4th Cir. 2009).

– Plaintiff sued employer for sexual harassment and employer countersued for business torts

– Boss accessed AOL account using password

– Jury awarded $400,000, including punitive damages

– 4th Cir. Affirmed punitive damages but remanded for reconsideration

– Punitive damages available without injury

• WebMD.com

• Medical Websites Concerning Injury or Disease

• E.g. Pulmonary Hypertension Association

• Health Related Chat Rooms

• Union websites

• Lawyer’s websites

Finding Out Who The Plaintiff (Or the Expert) Really Is

• Google• Yahoo

– Advanced searches narrow results to certain terms, time periods, or file format.

• Lexis/Nexis• Youtube• Facebook• Myspace• Twitter

And More:

• Flickr

• Photobucket

• Kodak

• LinkedIn

• Spoke

• Blogs

• Google blog search

Useful Info You May Find

• Postings about the incident (i.e. discussing the injury or visits to doctors, boasting about a lawsuit, or describing trips or activities inconsistent with claims)

• Photographs showing plaintiff engaged in post-accident activities;

• Photographs showing plaintiff in a poor light (i.e. drinking, using drugs);

• Descriptions of education/experience/skills in the “more professional” networking sites (such as Linkedin), indicating ability to mitigate damages.

Youth Killed While Hopping Trains

Boston fireman on "permanent disability" 

Drunken student teacher  

High School Art Teacher  

Don’t Forget to Look in the Mirror

Very “professional” company witness’ credibility can be destroyed by plaintiff’s counsel’s reference to her “MySpace” posting.

53-year old President of Salisbury University

Executive Assistant to Illinois State Congressman

Four Steps to Turn the Tables

1. Establish relevance of home computer, internet accounts or other electronic devices.

2. Have the court issue a “freeze” order against plaintiff for computer and its contents

3. Once relevant, push for forensic analysis of plaintiff’s home computer or electronic devices.

4. Look for destruction of evidence (drive wiping programs, reformatting, or loss of the hard drive, destruction of the computer, or deletion of specific files.)

Remedies

• Cry foul if forensic analysis turns up destruction of evidence and

• Move for – Adverse inference charge– Sanctions– Dismissal

Success Stories

Orrell v. Motorcarparts of America, Inc., 2007 U.S. Dist. LEXIS 89524 (W.D.N.C. Dec. 5, 2007)

Ordered forensic examination of plaintiff’s home computer in a sexual harassment case. Plaintiff claimed she got pornographic e-mails from her co-workers and forwarded them to home. Before returning her work laptop to the defendant, she had it “wiped.”

Success Stories

Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007)

Adverse inference charge against plaintiff in employment discrimination case for discarding personal computer a year after litigation began – despite testimony that she used it for post termination job search in mitigation of damages.

Success Stories

Foust v. McFarland, 698 N.W.2d 24 (Minn. 2005)

Affirmed trial court’s adverse inference charge against plaintiffs in auto accident case for using “WipeInfo” program to permanently delete data from computer hard drive.

Success Stories

Leon v. IDX Systems, 464 F.3d 951 (9th Cir. 2006)

Affirmed dismissal of complaint and $65,000.00 sanction for plaintiff’s use of “wiping” program to delete over 2,200 files from company laptop following initiation of employment discrimination case.

Success Stories

Covucci v. Keane Consulting Group, 2006 WL 2004215 (Sup. Ct. Ma. May 31, 2006)

Dismissed plaintiff’s age discrimination complaint for use of “BC Wipe” and “Incinerator” on unallocated drive space and to target specific programs

Success Stories

Anderson v. Crossroads Capital Partners, 2004 WL 256512 (D. Minn. Feb. 10, 2004)

Adverse inference charge in sexual harassment case, where two days after motion to compel production of plaintiff’s computer, she used “Cyberscrub” program to permanently delete data.

GGOLDBERG OLDBERG SSEGALLAEGALLA LLPLLPNEW YORK NEW JERSEY PENNSYLVANIA CONNECTICUT

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© Goldberg Segalla LLP / 2010 ALL RIGHTS RESERVED