The Proper Method for Lawyers to “Follow” Jurors and Witnesses

The Proper Method for Lawyers to “Follow” Jurors and Witnesses
John Patzakis, Esq.

Twitter continues to be a significant source of evidence in litigation and corporate investigation matters.  A legal database search of published opinions reveals several dozen known cases recently involving Twitter-based evidence. See, e.g., Agence France Presse v. Morel, (Dist. Court, SD NY 2011)  (Pictures posted to Twitter spawn copyright infringement claims); PH(X) Glass, LLC v. Clarke, (Dist. Court, ND Calif. 2011) (Twitter postings allegedly violated injunction in patent litigation). In addition to providing key evidence in virtually every type of litigation matter, lawyers are increasingly using Twitter to investigate and monitor potential and empanelled jurors. As we addressed in our recent webinar with Ralph Losey of Jackson Lewis, this type of monitoring activity can lead to serious attorney ethics violations if improperly performed.       

For instance, if an attorney were to merely “follow” a potential juror on Twitter, the social media service will automatically email the juror notifying them that they are being “followed” by that attorney under that attorney’s account name. According to several recent bar association opinions specifically addressing such a factual scenario, this is problematic and can lead to disqualification and even potential disciplinary action. (See e.g. New York County Law Association Formal Opinion No. 743, May 18, 2011). Proxies hired by attorneys, including eDiscovery service providers, investigators and jury consultants are subject to these restrictions, which can also apply to social media communications with witnesses or opposing parties who are represented by counsel.

For this reason, X1 Social Discovery features a specialized “public follow” feature that enables a user of the software to obtain all the past Tweets of a specified user (up to 3200 past tweets) and any new Tweets in real time without generating a formal “follow” request with the resulting problematic communication. This feature works within the public APIs provided by Twitter for third party developers. And as Twitter has a full license to distribute all Tweets and make them publically available information per their terms and conditions, we believe this is the most proper method to obtain this information.

To illustrate this important feature, we have made a 1 minute video clip available. These legal ethics rules concerning indirect social media communications underscores the importance of employing best practices technology to search and collect social media evidence for investigative and eDiscovery purposes.  Collecting evidence in a manner that prevents, or at minimum, does not require that attorneys and their proxies directly or indirectly communicate with the subjects from whom they are collecting social media evidence is a core requirement for solutions that truly address investigative and eDiscovery requirements for social media. In addition to collecting and authenticating social media evidence in a proper manner, X1 Discovery provides fast and comprehensive searching of the data in a manner unmatched by any other technology. All for $945 per year, which is a very small price compared to the direct and indirect costs associated with potentially running afoul of legal ethics rules. 

By Guest Blogger: Next Generation Law & Tech Blog http://blog.x1discovery.com/

Facebook Spoliation Costs Lawyer $522,000; Ends His Legal Career

Facebook Spoliation Costs Lawyer $522,000; Ends His Legal Career
John Patzakis, Esq.

In what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. A copy of the final order in Lester v. Allied Concrete Company is available here.

If Murray had initiated a proper legal hold concerning his client’s social media evidence instead of directing blatant spoliation, he would be a lot wealthier and likely kept his job. Instead, he apparently quit his position as managing partner of the largest personal injury firm in Virginia and, according to local press reports, he no longer practices law.

The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouses’ fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Murray instructed his client through his assistant to “clean up” his Facebook account. “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”

This case reflects a trend we see based on anecdotal data points where a minority of legal and eDiscovery practitioners has not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence.

The attorneys we speak with are telling us that social media evidence is relevant to nearly every case they handle and the savvy ones are using social media evidence to win their cases. And as we recently noted, since 2010 social media evidence played a key role in 675 different cases with published decisions reflecting such involvement and in presumably tens of thousands more cases not involving published decisions. Those numbers will only increase as social media networks grow even more popular.

However, I was struck by one recent conversation where an eDiscovery consultant had not yet included social media data source in their standard investigation checklist. To be fair, there has not been best practices technology available to enable scalable, mainstream social media eDiscovery until recently, which impacts standard processes.

But just as the Virginia state court judge saw no difference between Facebook postings and other “traditional” electronically stored information, neither should anyone in the legal and investigative fields, especially since the software needed to get the job done is now available.

By Guest Blogger: Next Generation Law & Tech Blog http://blog.x1discovery.com/

See X1 Social Discovery in Action!

X1 Social Discovery™ Introductory Video (3 min)

X1 Social Discovery is a breakthrough eDiscovery platform for social media. Watch this 3 minute introductory video to learn more about this powerful tool and to see the product in action.
Watch Now >

 

X1 Social Discovery™ Product Demo (10 min)

X1 Social Discovery is the first investigative solution designed to effectively address social media content from Twitter, Facebook, and LinkedIn. In this 10 minute video, Skip Lindsey, EVP of Business Development at X1 Discovery, demonstrates how to collect, authenticate, search and produce evidence using this comprehensive tool.
Watch Now >

 

X1 Social Discovery™ Product Feature Twitter Public Follow (1 min)

X1 Social Discovery includes a specialized "public follow" feature for Twitter that enables a user of the software to obtain all the past Tweets of a specified user and any new Tweets, in real time, without generating a formal "follow" request. In this brief video, Nick Torrecillas, Product Manager with X1 Discovery, demonstrates this important feature of the software.
Watch Now >

 

Recorded Webinar 
eDiscovery for Social Media: Fast and Defensible Methods to Collect and Preserve Evidence (45 min)

Hear from Erik Laykin, Managing Director and Co-Leader of Global Electronic Discovery and Investigations Practice, Duff & Phelps, and from eDiscovery industry veterans, John Patzakis and Brent Botta, both from X1 Discovery, on best practices and new methods to collect and preserve social media evidence.
Watch Now >

 

Recorded Webinar
Ethics of Social Media Discovery: Guidance on Proper Data Collection (60 min)

Join our webinar featuring Ralph Losey, partner of Jackson Lewis LLP, and John Patzakis, President and CEO of X1 Discovery. Hear from these eDiscovery experts who will outline key considerations concerning the legal ethics for social media collections, the law and supporting technology in this area. This activity is approved for MCLE credit in the State of California

Learn More >

 

Recorded Webinar
Social Media E-Discovery Process & Technology: LexisNexis and X1 Discovery Present a True End-to-End Solution (50 min)

Join our webinar to hear from eDiscovery experts addressing social media and its relevance to nearly all types of litigation matters. Learn about proper processes and procedures for the collection, search, analysis, review and production of social media evidence and see how X1 Social Discovery and LexisNexis Concordance seamlessly integrate to provide a complete solution for social media eDiscovery.

Learn More >

By Guest Blogger: X1 Social Discovery product demonstration

Whitepaper: Overcoming Potential Legal Challenges to the Authentication of Social Media Evidence

674 Published Cases Involving Social Media Evidence

Many in the legal and eDiscovery field cite the very illuminating research from the Duke Law Journal published in the spring 2011, which, based upon their search of the case law, identified nearly 300 federal court decisions through the end of 2009 that awarded e-discovery sanctions. This survey and others like it reinforce the sentiment that eDiscovery is crucial to nearly all litigation and internal investigation matters.

The work of the Duke Law Journal inspired us to search an online legal database of state and federal court decisions across the United States to identify the number of cases where evidence from social networking sites played a significant role. The numbers were quite an eye opener and exceeded even our high expectations.  From January 1, 2010 through November 1, 2011, 674 state and federal court cases with written decisions available online have involved social media evidence in some capacity.

The search was limited to the top four social networking sites and the tally came out as follows: Myspace (326 cases), Facebook (262), Twitter (49) LinkedIn (37). The numbers excluded results where the social networking site was either named as a party to the case or where such cases were cited as precedent.

Read more at http://blog.x1discovery.com/2011/11/09/674-published-cases-involving-social-media-evidence/

By Guest Blogger: Next Generation Law & Tech Blog http://blog.x1discovery.com/

X1 Discovery Unveils Industry’s First Investigative Solution to Collect Social Media Content

Social Media: Highly Relevant, Clearly Discoverable but No Workable eDiscovery Workflow – Until Now 

As reflected by extensive recent discussion in the legal and eDiscovery community in recent months, it is clear we all understand social media evidence is relevant to just about any type of civil and criminal case and thus must be routinely addressed in discovery. However, despite the obvious necessity for social media eDiscovery, legal and investigative professionals have lacked an effective means to effectively address social media evidence in their workflow in the same manner as email and files.

Recently, we launched X1 Social Discovery to enable a far more efficient, cost-effective and defensible process to address social media evidence. In a nutshell, X1 Social Discovery provides two core benefits. First, it is very fast, comprehensive and intuitive, collecting and indexing tens of thousands of potentially relevant social media items per hour and searching them with the instantaneous and patented X1 Search technology all in a very simple user interface. Secondly, it provides best practices for the preservation and authentication of social media, generating hash values for all collected items, collecting and preserving dozens of unique social media metadata fields and documenting a clear and concise chain of custody from collection through export to load file or native format.

In sum, we believe X1 Social Discovery represents enabling technology that addresses a critical need with an order of magnitude solution — One that allows for eDiscovery and legal professionals to not only reactively but proactively harvest the vast ocean of social media evidence in a rapid, defensible and cost-effective manner. We hope you agree and look forward to your comments, suggestions and continued support.

By Guest Blogger: X1 Social Discovery

LawBase Announces Release of LawBase Navigator

January 1, 2012 –Denver-based Synaptec Software, Inc. announces the release of LawBase Navigator, further enhancing the comprehensive integration between LawBase case management software and Microsoft Outlook. LawBase Navigator allows a user to view their LawBase home screen, including SmartFolders and Search tabs, from inside Outlook.

Synaptec President Philip Homburger says, “It’s an intuitive addition to our extensive line of product integrations. LawBase Navigator increases efficiency in a big way.”

Having access to SmartFolders from inside Outlook allows users to carry their organization style from LawBase over to Outlook. With full search functionality, LawBase Navigator allows users to search for specific keywords to find case files and contacts. When a user selects a file from LawBase Navigator, the file launches in the LawBase program.

LawBase Navigator is a big addition to the Outlook integration, which already allows users to easily add Outlook emails to LawBase notes and sync events and appointments from their LawBase calendar to their Outlook calendar.

About Synaptec Software, Inc.

Based in Denver, Colorado, Synaptec Software, Inc. is the developer of the LawBase case and matter management software package. A veteran company in the software field, Synaptec has more than 30 years of experience in developing the most adaptable, intuitive case and matter management product on the market today. LawBase is currently being used by thousands of users in law firms, Fortune 500 corporate legal departments and government agencies. LawBase can be installed on premises or hosted remotely.

By Guest Blogger: Synaptec Software, Inc.

Edge Legal Marketing and ALM Partner to Expand Press Coverage at LegalTech New York 2012

For Immediate Release

 

Minneapolis, MN– December 12, 2011 – Edge Legal Marketing, a Minneapolis-based marketing and public relations firm serving the needs of companies targeting the legal market, today announced The Edge Room is open for LegalTech® New York 2012 exhibitors to upload their company logo, press releases, white papers, articles, and company brochures. LegalTech New York, the largest legal technology event of the year, is January 30 – February 1 at The Hilton New York.

 

ALM and Edge Legal Marketing have partnered to expand press coverage at LegalTech New York. With the invention of The Edge Room™ – an online version of the traditional pressroom – exhibitors can easily upload their company information and post announcements prior to the show. Edge Legal Marketing will send login credentials to its proprietary legal and mainstream media database so users can have access to view exhibitor announcements and company information. This affords media the opportunity to plan their on-site media briefings and easily cover breaking news. The Edge Room can be found at www.theedgeroom.com.

 

The Edge Room has added additional exposure for exhibitors via its social media outlets including Twitter (#LTNY), LinkedIn and Facebook. Plus, press releases can be automatically posted on The Edge Room blog, which is optimized for search engine crawlers!

 

In early January, an email with login information will be sent to all exhibitors explaining how to submit press releases and media kits to The Edge Room. Shortly thereafter, media will be given secured access to view and download the online information submitted by exhibitors. If you have questions, please email lgarrett@EdgeLegalMarketing.com. To learn more about The Edge Room, visit www.theedgeroom.com today.

 

About LegalTech

 

LegalTech (http://www.legaltechshow.com) is the most important legal technology event of the year. Legal technology is ever-changing and LegalTech offers law firms and legal departments the ability to stay on top of this evolving industry to improve their law practice management. When you attend a LegalTech event you can earn CLE credits, learn about the newest advances in technology to help you meet your law firm or legal department's needs, as well as network with industry leaders.

 

LegalTech is part of ALM Conferences and Trade Shows, a leading producer of educational and networking events for business leaders and professionals. As a dynamic global business, ALM is committed to the development and success of the people it works with and the communities it serves. ALM aims to deliver the highest standards of integrity, fair-dealing and quality in the services it provides. For more information, visit www.alm.com.

 

About Edge Legal Marketing

 

Edge Legal Marketing (http://www.edgelegalmarketing.com) delivers marketing and public relations expertise to service, software and hardware providers targeting the legal market. The company helps B2B businesses market and sell their products and services to corporate legal departments, law firms, federal and state courts and legal associations. Edge Legal Marketing services include strategic planning, marketing and e-marketing action plans, alliance building, website development, market research, public relations and advertising (concept and media plans).

 

Media Contact:

 

Carolyn Depko Director of Media Relations Edge Legal Marketing 732-533-5491 cdepko@EdgeLegalMarketing.com www.edgelegalmarketing.com

 

The Edge Room Contact:

 

Leslie Garrett lgarrett@EdgeLegalMarketing.com