E Discovery and Social Media: y Evolving Litigation Challenges - PowerPoint PPT Presentation

Presenting a live 90 ‐ minute webinar with interactive Q&A E ‐ Discovery and Social Media: y Evolving Litigation Challenges Preserving and Collecting Tweets, Facebook Postings, LinkedIn Updates and Other Content THURS DAY, APRIL 14, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Anthony J. Diana, Partner, Mayer Brown , New Y ork Jason Gonzalez, Managing Director, Stroz Friedberg , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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S Social Media Revolution i l M di R l ti E ‐ Discovery and Social Media: Evolving Litigation Challenges Anthony Diana, Mayer Brown Jason Gonzalez, Stroz Friedberg April 14, 2011 Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

E ‐ DISCOVERY AND SOCIAL MEDIA: EVOLVING LITIGATION CHALLENGES • AGENDA – What Is Social Media? – How Can Social Media Be Used in Litigation and Government g Investigations? – What Are the Challenges for Proper Preservation and Forensic Collection of Social Media? C ll ti f S i l M di ? – How Can Social Media Impact a Litigation/Investigation Response Plan? p – What Are the Likely Future Developments for Social Media and its Use in Litigation/Investigations? 6

WHAT IS SOCIAL MEDIA? • Social Media • Types of social media – Interactive – Facebook – Web ‐ based – Twitter – Communications with many y – LinkedIn people – Blogs • Categories of social media – Organization ‐ sponsored, outwardly ‐ facing, sites – Internal sites, blogs, work spaces – Employees’ personal sites Employees personal sites 7

The History Of Social Networks Niche D ti Dating Sites Sit Open Communities Communities The User Has Always The User Has Always User Determined the Homepages Content 8

Social Network Demographics Usage by Age 0 ‐ 17 Twitter 18 ‐ 24 LinkedIn 25 ‐ 34 Social Network Usage By Country 35 ‐ 44 MySpace Home & Work 45 ‐ 54 Time per Person Facebook Country 55 ‐ 64 (hh:mm:ss) (hh:mm:ss) 65+ Average 5:27:33 0% Italy 6:27:53 50% 100% Australia 6:25:21 United States 6:02:34 Usage by Gender Usage by Gender United Kingdom 5:50:56 70 Spain 4:50:49 60 Brazil 4:27:54 50 40 France 4:12:01 Male 30 30 Germany 3:47:24 Female 20 Switzerland 3:26:00 10 Japan 2:37:07 0 Source: The Nielsen Company 9 Source: Google Ad Planner

WHAT IS SOCIAL MEDIA? • Why so powerful? – Reach – Credibility Credibility • Nielsen study found that 70% of internet users trust online recommendations – Interactivity Interactivity – Speed and ease of use – Type of information available • Digital word ‐ of ‐ mouth marketing is expected to top $3 billion by 2013 y 10

HOW CAN SOCIAL MEDIA BE USED IN LITIGATION AND GOVERNMENT INVESTIGATIONS? • Sponsored External Sites – Evidence of communications with customers Evidence of communications with customers • False Advertising Claims • Securities Fraud Claims • “Records” for regulatory purposes – Evidence relating to employees or potential employees • Employment ‐ related litigation • Employment decisions – Evidence of an Organization’s Self ‐ Image • Themes or narrative • Punitive damages 11

HOW CAN SOCIAL MEDIA BE USED IN LITIGATION AND GOVERNMENT INVESTIGATIONS? • Internal Sites – Evidence of communications with and among employees Evidence of communications with and among employees • Employment litigation (discrimination, workers comp, hiring and firing decisions, etc.) • State of mind: intent, fraud, negligence, conspiracy • Admissions 12

HOW CAN SOCIAL MEDIA BE USED IN LITIGATION AND GOVERNMENT INVESTIGATIONS? • Personal Sites – Evidence of time and place • Criminal cases – Evidence of actions • Divorce • Employment – Evidence of communications • Employment litigation • State of mind: intent, fraud, negligence, conspiracy • Admissions – Evidence of bias • Jury Section 13

Taxonomy Of Data • Service Data: what you provide (name, age, credit card #) 1 • Disclosed Data: what you post (updates, tweets, photos) 2 • Entrusted Data: what you post on other people’s pages E t t d D t h t t th l ’ 3 • Incidental Data: what others post about you Incidental Data: what others post about you 4 • Behavioral Data: info about your friends, likes, habits 5 5 • Derived Data: algorithmic inferences about you 6 6 Schneier, Bruce. “A Taxonomy of Social Networking Data.” IEEE Security & Privacy. July/August 2010. 14

The Big Three Li k t Oth Links to Other Users U Public Messages P i Private Messages M Chat Photos h Biographical Information Affiliations File Sharing Geolocation 15

16 Geolocation

Geolocation Considerations Approximate Locations • Can be over 300 meters away C b 300 Easily Falsified y • Requires limited coding You are Here …? 17

Investigating Anonymous Comments Traditional Technique of Following the Subpoena Chain Traditional Technique of Following the Subpoena Chain Web Web Internet ISP Forum Subscribers Id Identifiable Accounts that Escape ifi bl A h E Anonymizers 18

Identification of Evidence Online Preservation Preservation Desktop and Subpoenas L Laptops t to Sites Computer Mobile Memory Memory Phones Phones Search Engine C Caches h 19

Evidence Gathering Facebook YouTube Twitter Linked ‐ In • HTML HTML • A/V / • Full Featured • HTML capture Capture Capture API • A/V • Custom • Check for Capture Dynamic Dynamic Scripts Scripts Content 20

Evidence Gathering From Hard Drives File carving for “text”:” and }]} Searching for UIDs Si Simon Key’s EnScript K ’ E S i t Internet Evidence Finder Internet Evidence Finder 21

Evidence Gathering From Smartphones Links to Facebook Facebook Photographs UIDs Facebook Facebook iPhone Database Facebook UIDs Friends’ First & Last Names Names AppDomain ‐ com.facebook.Facebook ‐ Documents/friends.db 22

Authenticating Under 901(a) “The requirement of authentication or identification as a condition precedent to admissibility diti d t t d i ibilit is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” 23

Laying A Foundation For Authentication • Trace originating IP back to subject’s computer • Obtain subscriber information for the subject account • Tie sent items to a smartphone • Time ‐ line communications to book ‐ end subject communication • Get data for timeline from on ‐ line repository or forensic review of hard drive, smartphone • Establish password ‐ protected nature of the account • Party to a communication testifies as to authenticity 24