s, Social Media, and Other Online Evidence and How Proportionality Factors into the Discovery of Such Evidence

Transcription

1 Records & E-Discovery (RED) s, Social Media, and Other Online Evidence and How Proportionality Factors into the Discovery of Such Evidence July 17, Today s Speakers Patricia E. Antezana Counsel Regis W. Stafford Counsel 2

2 Rule 26(b)(1) Discovery Scope and Limits Scope in General Addition of proportionality to the scope of discovery under Rule 26(b)(1): Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Eliminates: Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. 3 Amador v. U.S. Bank Nat l Ass n, Civil No (D. Minn. Nov. 6, 2017) Plaintiff alleged Defendant terminated his employment based on unlawful racial discrimination Defendant claimed that it terminated Plaintiff for three legitimate business reasons: 1) improper use of a corporate credit card; 2) failing to obey a directive from upper management to stop servicing a customer after plaintiff transferred branches; and 3) compliance concerns based on Plaintiff s use of Customer Advice Debit slips or CAD slips. The Plaintiff s use of CAD slips caused a number of discovery disputes 4

3 Amador v. U.S. Bank Nat l Ass n, Civil No (D. Minn. Nov. 6, 2017) Defendant claimed use of the CAD slips is discouraged and employees are directed to use them primarily to correct teller error Plaintiff claimed, however, that other employees similarly used CAD slips to transfer funds from one account to another account of a customer even if the customer were not physically present to sign for the transfer Plaintiff moved to compel production of all CAD slips from Defendant s Minnesota branches for the five years preceding Plaintiff s motion, excluding CAD slips used to correct teller error 5 Amador v. U.S. Bank Nat l Ass n, Civil No (D. Minn. Nov. 6, 2017) Court initially noted that other branch managers' use of CAD slips under similar circumstances was of significant importance as were Defendant's concerns regarding the burden and expense of producing the slips for a five-year period for all Minnesota branches Balancing its concerns, the Court permitted some discovery of CAD slips and instructed the parties to agree on a sampling protocol to locate CAD slips unrelated to teller error for a twoyear period Parties were unable to reach an agreement, mainly because the prevalence of CAD slips was not the primary issue Parties agreed to use a questionnaire to determine if Defendant s other branch managers used CAD slips similarly to Plaintiff, sending it to managers at eight branches for the time period

4 Amador v. U.S. Bank Nat l Ass n, Civil No (D. Minn. Nov. 6, 2017) The "real question" was whether "whites and Hispanic branch managers [were] treated differently over the improper use of CADs" Two branch managers responded that they used CAD slips for purposes other than correcting teller error, one of whom trained Plaintiff Plaintiff sought additional discovery focused on the two managers and an assistant manager who had used CAD slips to transfer money between accounts of the same customer without that customer s signature Magistrate Judge ordered (1) focused additional discovery of documents from another litigation related to the assistant manager s use of CAD slips and (2) depositions of the two branch managers 7 Amador v. U.S. Bank Nat l Ass n, Civil No (D. Minn. Nov. 6, 2017) Depositions revealed that two branch managers used CAD slips similarly to the way Plaintiff used them for customers Plaintiff then sought (1) CAD slips used for Tier 1 customers at the branch where the two managers who used the CAD slips similarly to Plaintiff worked and (2) CAD slips used for any other customer at a Minnesota branch for a two-year period Defendant opposed production, arguing that producing the CAD slips would be unduly burdensome and expensive and of only limited benefit to plaintiff Defendant s systems did not track how a CAD slip was used Defendant would have to access each customer account and review all CAD slips Thousands of documents would have to be reviewed by hand CAD slips will show nothing that was not already revealed in depositions 8

5 Amador v. U.S. Bank Nat l Ass n, Civil No (D. Minn. Nov. 6, 2017) Court found that requiring Defendant to search for and produce CAD slips contained in a limited number of accounts was not disproportionate to the needs of the case Court granted Plaintiff s request for (1) CAD slips not related to teller error and not previously produced contained in all Tier 1 accounts at the relevant branch for the requested twoyear period and (2) CAD slips performed for one specific customer referenced in deposition Court focused on what was relevant whether Plaintiff was treated differently from white counterparts over alleged misuse of CAD slips Court also focused on burden of searching for CAD slips without any limitations 9 Amador v. U.S. Bank Nat l Ass n Civil No (D. Minn. Nov. 6, 2017) Striking the "correct balance" Plaintiff s request for CAD slips, properly limited to those used for a single client and only Tier 1 customers at a single branch for a limited period of time, strikes the correct balance. The single branch had confirmed use of CAD slips not related to teller error Information sought mattered greatly to both sides Defendant intended to distinguish Plaintiff s use of CAD slips from that of the other branch managers the frequency of use was relevant to both sides arguments Likely benefit of the information was not outweighed by the burden of producing CAD slips involving specific accounts at one branch for a specific time period 10

6 EEOC v. FedEx Ground Package Sys., Inc., Civil Action No. 2:15-cv-256 (W.D. Pa. March 21, 2018) FedEx brought motion to preclude discovery or for protective order in nationwide disability discrimination suit Parties met and conferred regarding production, including relevant FedEx custodians and search terms EEOC sought data from 26 custodians that included approximately 364,000 s and attachments FedEx argued that the requested searches would not result in a sufficient quantity of responsive documents to justify review FedEx also argued that the s were not reasonably accessible because the volume exceeded its internal capabilities 11 EEOC v. FedEx Ground Package Sys., Inc., Civil Action No. 2:15-cv-256 (W.D. Pa. March 21, 2018) FedEx conducted a statistical sample of the s to support its argument that the requested documents were beyond the scope of Rule 26 Responsive rate of the sampling was 8.3% EEOC objected to the statistics, arguing that FedEx was low-balling the responsive rate 12

7 EEOC v. FedEx Ground Package Sys., Inc., Civil Action No. 2:15-cv-256 (W.D. Pa. March 21, 2018) Court concluded that the EEOC s requested ESI fell within the scope of Rule 26 and denied FedEx s motion Court agreed with the EEOC that: FedEx incorrectly attempts to frame relevancy as a binary test where information is either irrelevant or a smoking gun. After review of the EEOC s discovery request, it strikes the Court as within the much more encompassing target of what would reasonably lead to the discovery of information relevant to the EEOC s claims or FedEx s defenses. 13 EEOC v. FedEx Ground Package Sys., Inc., Civil Action No. 2:15-cv-256 (W.D. Pa. March 21, 2018) Court disagreed that the large size of the starting pool of documents and the anticipated much smaller responsive results should prevent the requesting party from obtaining discovery ESI Court also noted that the record did not reflect that FedEx proposed any further meaningful revision to the search terms to try to reduce the number of false hits Court further reminded the parties that they understood the case would be big from the beginning, requesting nearly four years of fact discovery in their Rule 26(f) report 14

8 EEOC v. FedEx Ground Package Sys., Inc., Civil Action No. 2:15-cv-256 (W.D. Pa. March 21, 2018) Court stated: For better or worse, while our system of civil discovery relies on the parties and their lawyers to make the first decisions about the production of documents (electronic or otherwise) within the contours of the applicable Rules, they don t get to define those Rules 15 Repercussions Associated with Large Quantities of Data - EEOC v. FedEx Ground 193 gigabytes of data consisting 363,000 s and attachments from 26 corporate custodians The equivalent of 871 boxes of documents Why did FedEx maintain so many s that were discoverable? Maintaining such large quantities of data is expensive, has repercussions for litigation and also raises cyber security and privacy risks 16

9 How to Mitigate Cost, Litigation, Cyber Security, and Privacy Risks Implementation of Records Management Policy with Defensible Disposition to Mitigate Risk Systematic deletion of data in a reasonable, good faith manner, taking into account a company s business, legal, and regulatory retention obligations Legal Obligations Associated with Generally, the only legal obligation for maintaining would be if a litigation hold has been issued or if litigation is reasonably anticipated 17 EEOC v. FedEx Ground (con td) FedEx retained many of the 363,000 s not because of a business reason, but because of a preservation order in another lawsuit If FedEx had a defensible disposition plan as part of a records management policy, it likely would not have had so many s sitting in storage subject to discovery Lucky break for EEOC 18

10 Over-Retention - Lack of Records Discipline? Most businesses retain too much company not because of a legal hold, but because they want to refer to previous communications for business reasons and they are not disciplined about deleting what they really don t need Surveys indicate that more than 90% of employees tend to save more documents than they need 19 How Do Companies Solve This Problem? 1. Implement an Up-to-Date Document Retention and Defensible Disposition Plan 2. Defensible Legal Hold Policy and Process 3. Record Archiving Strategy 4. Train Employees and Stick to the Policy 20

11 Records Retention Policy 21 Cybersecurity Risk Notable Data Breaches Sony Hack (ultimately cost Sony $1 billion) Target Stores Data Breach Yahoo 2013 and billion user accounts (every account on Yahoo, Flickr, Tumblr, and dozens of other Yahoo-owned online properties had at the time) Equifax million accounts compromised 22

12 Cybersecurity Risk ABA Formal Opinion ABA Formal Opinion issued on May 14, 2017 Securing Communication of Protected Client Information A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access to information relating to the representation. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security. 23 ABA Formal Opinion (cont d) Lawyers now regularly use a variety of devices including desktop, laptop and notebook computers, tablet devices, smartphones, and the cloud and each device and storage location offer an opportunity for the inadvertent or unauthorized disclosure of information. Law enforcement discusses hacking and data loss in terms of when, and not if. Law firms are targets: (1) they obtain, store and use highly sensitive information about their clients while at times utilizing safeguards to shield that information that may be inferior to those deployed by the client; and (2) the information in their possession is more likely to be of interest to a hacker and likely less voluminous than that held by the client. 24

13 Law Firms Targeted 25 What are Law Firms Doing Proactively? 1. Two Factor Authentication 2. Secure 3. Training Employees so they do not get Phished Phishing is a form of cyber fraud in which an attacker masquerades as a reputable entity or person in or other communications. The attacker uses phishing s to distribute malicious links or attachments that can perform a variety of functions, including the extraction of login credentials or account information from victims. 26

14 27 Social Media 28

15 O Malley v. Public Belt Railroad Comm n for the City of New Orleans, Civil Action No (E.D. La. February 6, 2018) Claims under the Federal Employer's Liability Act to recover expenses for medical treatment and expenses and lost wages/benefits after plaintiff was struck by a locomotive Defendant brought motion to compel production of financial information (checks, savings/checking bank account, credit card, debit card statements) and documents relating to social media account activity Plaintiff opposed motion arguing that the request for financial information was overly broad and that the request for social media activity should be denied because courts "do not typically allow unfettered access to social networking records as sought by [Defendant] here" 29 O Malley v. Public Belt Railroad Comm n for the City of New Orleans, Civil Action No (E.D. La. February 6, 2018) Proportionality considerations under Rule 26(b)(1) the parties and the court have a collective responsibility to ensure that discovery is proportional Social media materials are discoverable when they are relevant and proportional to the needs of the case Simply because Plaintiff has put his or her mental and physical conditions at issue does not permit unfettered access to Plaintiff s social networking sites akin to rummaging through desk drawers and closets in Plaintiff s home 30

16 O Malley v. Public Belt Railroad Comm n for the City of New Orleans, Civil Action No (E.D. La. February 6, 2018) Court denied request for financial records because request was overly broad; Court noted medical expenses would be found in medical bills not Plaintiff's savings/checking account, credit card, or debit card statements Court denied request for social media records because it was overly broad - similar to requests rejected by courts in other cases Appropriate request would limit production to, for example, postings that relate to the accident in question, alleged emotional distress, inconsistencies in claimed mental injuries, alleged physical injuries, and/or other injuries sustained by Plaintiff or inconsistencies with alleged injuries 31 O Malley v. Public Belt Railroad Comm n for the City of New Orleans Civil Action No (E.D. La. February 6, 2018) Court determined that limited time frame (the time of the accident to the present) was appropriate Court permitted defendant to serve a revised request for production of social media materials that is consistent with the case law, appropriately considers relevance, and balances its need for information with the burden on plaintiff and his privacy interests 32

17 Section 1983 civil rights action brought by state inmate against approximately 20 correctional facility Defendants Plaintiff alleged that he was sexually harassed by a female correctional officer, Defendant Zong, at SCI Rockview in Plaintiff alleged other correctional staff failed to intervene and protect him from the harassment Plaintiff sought evidence to support allegations that the correctional officers were aware of Defendant Zong s sexual contact with him, condoned or enabled it, and derived amusement from it, but failed to intervene and protect him from the sexual harassment and abuse 33 Landau v. Lamas, Civil Action No. 3:15-CV-1327 (M.D. Pa. December 15, 2017) Plaintiff sought information about the social media used by Defendants and also sought access to it Defendants informed Plaintiff that such social media content did not exist Plaintiff persisted, seeking wholesale disclosure of social media content among Defendants for either a seven-month period or as long as four years Plaintiff also sought information which would enable him to subpoena phone and internet usage information from Zong s internet and phone service providers 34

18 Landau v. Lamas, Civil Action No. 3:15-CV-1327 (M.D. Pa. December 15, 2017) Court granted unopposed request for information to subpoena service provider information and ordered agreed-upon review of Defendant Zong s Facebook site Court denied wholesale access to social media as too speculative, not relevant, and too broad, but did so without prejudice to serve more narrowly tailored requests and prescribed a process for appropriately tailoring such discovery Three-step effort aimed at appropriate social and electronic media discovery: Preserve social media during relevant seven-month time period and any relevant content Review and produce all relevant content or affirm none exists Determine whether any relevant content has been deleted and be prepared to explain circumstances of deletion 35 Who is Using Social Media? As of March 2018: 68% of U.S. adults use Facebook 75% of U.S. adults use YouTube 35% of U.S. adults use Instagram 41% of women use Pinterest 50% of Americans with a college degree use LinkedIn 36

19 Social Media Impact on Discovery There have been more than 9,500 cases in the preceding 12 months in which social media evidence has played a significant role -- This represents over a 50% increase from 2015 [August 2016 review by X1] In July 2017, Robert Half Legal reported that more than half of the lawyers surveyed reported an increase over the last two years in lawsuits related to postings on social media 37 Social Media Impact on Discovery Postings on social media sites may be subject to discovery: Matthews v. J & J Service Solutions, LLC, 2017 WL (Mag. M.D. La. May 23, 2017) Plaintiff ordered to comply with document requests for all social media communications with Defendant s current or former employees and for archived Facebook material 38

20 Social Media Is Not Private Brown v. City of Ferguson 2017 WL (E.D. Mo. Jan. 27, 2017) Social media discovery is no different than any other discovery Social media is neither privileged nor protected by a right of privacy Plaintiffs must produce all social media content with any relevance to the case, for five years prior to the incident, including private messages sent through Facebook Messenger 39 Social Media is Discoverable Forman v. Henkin, 30 N.Y.3d 656 (Feb 13, 2018) The New York Court of Appeals issued an unequivocal declaration that even materials deemed private by a Facebook user are subject to discovery, if they contain material relevant to the issues in controversy in litigation In this decision, the Court rejected the existing case law which held that discovery of social media data should be subject to special rules Instead, the Court found that it should be governed by the same principles and procedures as those governing traditional discovery 40

21 Preservation Don t Get Tripped Up! The duty to preserve potentially relevant evidence arises when a party reasonably anticipates litigation, and may arise before an action is filed This duty applies equally to social media content (see Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 138 F.Supp.3d 352, (S.D.N.Y. 2015); Howell v. Buckeye Ranch, Inc., 2012 WL , at *2 (S.D. Ohio Oct. 1, 2012)). 41 Litigation Holds and Collection As with other potentially relevant ESI, counsel should not overlook social media content in preservation or collection efforts Caputi v. Topper Realty Corp., 2015 WL , at *8 (E.D.N.Y. Feb. 25, 2015) (directing plaintiff to preserve all of her Facebook activity through the litigation's duration) Counsel should make sure that social media is one of the categories captured in litigation holds if social media is used. Counsel drafting a preservation demand letter to an adversary should consider specifically reference social media platforms, including any associated and collectable metadata, among the potential sources of information that should be preserved. 42

22 Spoliation and Exposure to Sanctions With social media, there is an increased risk that a party or its counsel may be accused of spoliation by destroying or altering evidence. Not all clients appreciate the potential exposure to spoliation sanctions, given how easy it can be to delete, alter, or eliminate a digital file or social media post. Counsel should specifically instruct clients not to destroy or alter social media content where it may be relevant to an anticipated or ongoing litigation. 43 Spoliation of Social Media Gee v. Citizens Insurance Co., 2017 WL (Mich. App. Feb. 21, 2017) Affirming dismissal of Plaintiff s complaint as a sanction for deliberately deleting social media information to evade discovery 44

23 Spoliation of Social Media Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699, 2013 ILRC 1053 (2013) Virginia lawyer representing Plaintiff instructed a paralegal to tell his client to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information Plaintiff Lester deleted 16 photos, including one in which he held a beer can and wore a t-shirt that said I (heart) hot moms Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos. As a sanction, a trial judge had ordered the attorney and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees Lawyer was given a five-year suspension 45 Ethical Considerations for Social Media Investigation Many ethical guidelines and rules now require attorneys to learn and understand the basics of social media networks as part of their practice (see, for example, New York State Bar Ass'n (NYSBA) Social Media Ethics Guidelines (2017 NYSBA Guidelines), No. 1.A). These ethical guidelines and rules also often address how to handle social media content before and during litigation. 46

24 Ethical Considerations for Social Media Investigation A lawyer investigating a case generally: May access the public portions of a party s or witness s social media account, regardless of whether 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 47 Ethical Considerations for Social Media Investigation A lawyer investigating a case generally may not: Use deception to "friend" or "follow" an unrepresented individual is uniformly deemed unethical, based on either or both: ABA Model Rule 4.1, prohibits a lawyer from making a false statement of (or failing to disclose a) material fact to a third person. ABA Model Rule 8.4(c), states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 48

25 Ethical Considerations for Social Media Investigation However, the interpretation of deception differs across jurisdictions. In some jurisdictions, including New York, a lawyer can join a social network and connect with or "friend" an unrepresented individual without disclosing the reasons for the request if it does not involve any type of trickery. The lawyer cannot, for example, create a different or false name or profile to mask his identity (see, for example, 2017 NYSBA Guidelines, No. 4.B; New York City Bar Ass'n (NYCBA) Committee on Professional Ethics Formal Op , Obtaining Evidence from Social Networking Websites)). The lawyer must use her full name and an accurate profile. 49 Privacy Settings Counsel should try to protect a client s social media content from an adversary by maximizing the client s privacy settings. Conversely, an investigating lawyer should seek out as much relevant, public social media content as possible, in part because it can form the basis for requiring an adversary to disclose non-public information. When advising a client to maximize privacy settings on any social media account, counsel should caution the client against deleting, altering, or disabling content on the account without also adequately preserving the content, or risk sanctions. 50

26 Narrowly Tailored Requests Requests must be closely tied to the subject matter of the case. Requests must be strictly limited by the relevant time scope. Parties must formulate their requests carefully because courts may not be willing to reframe them. Requests for metadata or native format production must be substantially justified by the needs of the case or on evidence of spoliation. 51 Scope and Logistics Some courts have required parties to provide log-in and password access to an agent of the court for a preproduction in camera inspection of social media content (see, for example, Original Honeybaked Ham Co., 2012 WL , at *3; Offenback v. L.M. Bowman, Inc., 2011 WL , at *1 (M.D. Pa. June 22, 2011)). Other courts have relied on user authorizations requesting that the social media provider produce the information (see, for example, Gatto, 2013 WL , at *1). 52

27 Social Media in Litigation - Pennsylvania Kelter v. Flanagan, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018) In a personal injury action following an automobile accident, the Court of Common Pleas of Monroe County granted the Defendant s motion to compel the Plaintiff to turn over login information for her Instagram account. The request for the login information came after the Plaintiff s deposition, during which she was shown photographs from her Instagram account that were publicly available. These photographs tended to show that, both before and after the accident, the Plaintiff was engaged in physical activity that should not have been possible given the extent of her claimed injuries. 53 Social Media Archive Instructions 54

28 Poking Around Facebook Could Win Your Case Ray v. Lincoln Elec. Co., et al., No. 1:04-cv (N.D. Ohio) Totally disabled or speedboat racer? Plaintiff claimed in his deposition that he had been totally disabled since 2004 but review of his social media discovered that he continued to race power boats 55 Other Online Evidence Accurint - A public records database owned by Lexis. They are public records aggregators and, for a fee of $10 or $12, Accurint will provide information such as a partial SS #, partial birthdate, addresses, UCC filing information, criminal history, and drivers license info which is available in certain states, but not others. The report will also provide information regarding possible family members. Accurint also offers a social media report for $2 or so. Westlaw (People Map) Very similar to Accurint SMI Deep Report 56

29 Accurint 57 Social Media in Litigation 58

30 Social Media in Litigation 59 Additional Online Evidence CNS Courtroom news services which provides alerts as to new filings Newsbank aggregator of news articles Internet archive wayback machine at archive.org/web/ which has access to more than 333 billion web pages saved over time Meta search engines bills itself as private search engine Information related to corporations available from Avention (Dunn & Bradstreet), Capital IQ, and Hoovers Bloomberg Law Google Scholar PubMed And the list goes on 60

31 Simons v. Petrarch LLC, Case No /2013 (N.Y. Sup. Ct. March 1, 2017) Defendants moved for sanctions against Plaintiff and her attorneys based on spoliation of evidence, including text messages With regard to text messages, Defendants sought dismissal, to preclude evidence, or to obtain adverse inference instructions and also requested monetary sanctions 61 Simons v. Petrarch LLC, Case No /2013 (N.Y. Sup. Ct. March 1, 2017) Plaintiff produced screen shots of texts that did not include the full text message thread Plaintiff had discarded her cell phone, so full texts were no longer available Defendants claimed that screen shots did not always include a time/date and alleged that some texts had been altered/deleted 62

32 Simons v. Petrarch LLC, Case No /2013 (N.Y. Sup. Ct. March 1, 2017) Court concluded that Plaintiff had a duty to preserve text messages and texts were relevant to her claims No way for Defendants to analyze Plaintiff s phone or retrieve complete text messages Court reasoned that Plaintiff should be precluded from entering screen shots into evidence or testifying about them because Defendants were deprived of opportunity to view complete texts 63 Simons v. Petrarch LLC, Case No /2013 (N.Y. Sup. Ct. March 1, 2017) Court ordered that an adverse inference instruction be given resolving all disputed issues in Defendants favor as to the missing evidence and awarded attorneys fees and costs in connection with the motion to compel In addition, Plaintiff would be precluded from introducing screen shots that she had selectively saved into evidence 64

33 Questions? Patricia E. Antezana Regis W. Stafford