1. No category

5/5/2014
Overview



By: Shelby Benton & Ketan Soni




(e)discovering the digital terrain

The (nearly) Undiscoverable
SOCIAL MEDIA
 Text Messages
Snap a photo or a video, add a caption, and send it to a friend (or
maybe a few). They'll view it, laugh, and then the snap disappears from the screen unless they take a screenshot! If you want to share a Snap with all of your friends, add
it to your Snapchat Story, where each Snap lives for 24 hours until it disappears,
making room for the new.
 BUT!

: 100 million people love Kik, the smartphone messenger with a built-in browser.
And since your Kik username - not your phone number - is your Kik identity, you’re in
complete control of who you talk to on Kik.

Others:
 Twitter
 LinkedIn
 Google+
 Instagram
 Pinterest
 Foursquare
Snapchat:

 Facebook/MySpace
 YouTube
What is electronic evidence?
Who uses it?
How do they use it?
How do you use it against them?
How will attorneys use it against you?
How do you protect yourself and your
client?
Resources on obtaining electronic
evidence info
Kik


 Vine
Yammer, ICQ, IRC (Internet Relay Chat), AOL Instant Messenger, Windows Live
Messenger, Yahoo Messenger, Tango (like Skype), Viber (like Skype).
More being developed to avoid detection daily!
TEXT MESSAGES
R U ETNG A DONUT?
Technically not social media
 Still relevant ‘electronic’ communication
 Short message from one device (typically phone) to
another device
 Information does not hang out “over the Internet”


TEXT MESSAGES:
“WHO”
U.S. Alone:
 First started in 1992
 Text message usage:
2002:
2008:
2009:
2010:
2011:
2012:
only 250 Billion worldwide
1+ Trillion in the U.S.
1.56 Trillion in the U.S.
2+ Trillion in the U.S.
2.3 Trillion in the U.S.
2.2 Trillion:
= 63,500+ per second
= 31 electronic “tons” of
evidence per second
1
5/5/2014

TEXT MESSAGES:
“WHAT”
SMS – Short Message
Service

TEXT MESSAGES: EVOLUTION
MMS – Multimedia
Messaging Service

iMessage – “instant
messenger” service between
Apple Products

TalkNow Skype,
TalkNow,
Skype
Messenger+, Yammer,
Tango, Viber
Semi-Text Messaging
FACEBOOK
Skype Messaging
iMessage

Early 2000s: The origination of mass “social media”, with
pictures?
 Information is online accessed through:
○ “website” on your computer
○ “website” on someone else’s computer (BestBuy, Apple Store, etc)
○ “App” on phone
○ Website on anyone’s
anyone s phone
○ iPad, or any other tablet
 Information available to one of the following:
○ Everyone in the world; or
○ Everyone that you “friend”; or
○ Every time a “friend” mentions your name; or
○ No one or limited persons, if you so choose.

FACEBOOK:
“WHO”
http://www.facebook.com/ketansoni
FACEBOOK:
“WHAT”

Started 2004







You can post:
 A “status”: anything happening
12/06 – 12 Million users
12/07 – 50 Million users
12/08 – 150 Million users
12/09 – 360 Million users
12/10 – 608 Million users
11/11 – 845 Milli
Million users
in your life
 Opinions about your spouse,
their family, or your kids
 Pictures of yourself, spouse,
and others
 Links to other websites

Now: Nearly 160 Million
users in U.S. (~50% of
population)
 24% between 25-34
 17% between 35-44
 13%: between 45-54

Anyone you allow as a
“friend” can:




Post on your page
Comment on your status
“Like” your status
Share your status/information
with others
2
5/5/2014

Privacy
 Various privacy settings
FACEBOOK:
“WHAT”
 Default setting possibly
allows everyone to view
your page
 Pictures/Content (from
Facebook):

Play Privacy Video for Facebook.
○ “When you
o upload
pload your
o r
content, you grant us a
license to use and
display that content.”
○ No expectation of
privacy?
Urban Dictionary
#TWITTER


Facebook:
1) A stalkers dream come true
2) The reason my CLE are never done on time.
3) Facebook is like prison, you write on walls and poke
random people
4) What sadly counts as "socializing"
socializing now-a-days.
now-a-days
5) WARNING: The new addictive drug that has
devastatingly hit most colleges, universities, and
high schools. The drug causes lasting effects:
procrastination, swollen fingers, dropped grades,
irritation of the eyes, increased need to add more
friends to your friends list, and skipped classes. Be
cautious, some think they are immune to the effects
of Facebook, until they try it and by then it’s too late.
Protect Yourselves.
TWITTER: “WHO”
Started in 2006
 Today:

 ½ Billion Users
 400 Million Tweets
per day
d
Dear World: Pay attention to what I think is
important, whether real news or not, in 140
characters or less (This is exactly 140 characters)
characters)
 # - A topic “thread” that can be searched:
○ #divorce, #lawyers, #evidence
 @ - Referringg to another Twitter user:
○ @NCMediation
NCMediation,, @
@NCBAOrg
NCBAOrg,, @
@CharlotteLawEdu
CharlotteLawEdu
 RT –“Re
“Re--tweeting” exactly what someone else wrote on
twitter
 MT – “Re
“Re--tweeting” someone else’s post that you have
modified
https://twitter.com/ncmediation
TWITTER: “WHAT”
Your Tweets are
generally Public
 No account needed to
see messages from
others
 Add “shortened”
shortened links
to other websites
 Now:

 Add images
 Add videos

NEXT: “Vine” -> 6
seconds of video
“about yourself”
3
5/5/2014
LinkedIn

Your online resume









Past and current positions
“Connections” with other people
Projects
Awards
Skills
Endorsements
Education
Possible for Imputation of Income in Bad
Faith cases
Show Joy Belk’s profile.
FOR ALL MEDIA
Where, Why, When, How

THE REST (for now)

Answer:
 Everywhere
 All the time

 For no reason at all
 With the closest ‘device’ available

Any Computer:
 Most social media accessed through website = any computer can be used

Increase in number of mobile devices


 Phones have apps to access and post on all forms of social media
 Tablets/iPads have similar apps
 Computers/Laptops/Desktops can be used to login at any location


Instagram/Pinterest: Sharing experiences through
pictures, with the ability to filter. Admittedly, I don’t
really get this one, but there are 100 million users!
YouTube: Videos. Lots of videos. Lots of amateur
videos. Videos of Cats.
Google+: Like Facebook, but more oriented towards
‘professional’
professional purposes.
Foursquare: Displays history of where one “checks-in”
to various destinations. Restaurants, courthouses,
schools, bars, businesses.
Vine: 6 seconds of video about what you’re doing.
Increased accessibility = increase in potential evidence = increased
scrutiny on everything we do?
4
5/5/2014
Social Media: Translated

Text:

Twitter:



Does it happen?
(you bet your smartphone it does!!)
I divorce u! I divorce u! I divorce u!
About to tell @myspouse that we need #divorce. Read best way on
http://hullandchandler.com
Facebook:


“Like” this status if you think I should get divorced;
Or: Just finished mediation after attorney said I have to split my retirement account. Wish I
could “dislike”

Instagram:

LinkedIn:


Here’s a marriage photo of my spouse and I. I tweaked it before we got divorced.
My skills include mediation and divorce law. My past positions have been...:

YouTube:

Foursquare:


Here’s a video of me ranting at my spouse who asked for a divorce
I just checked-in at Guilford County Courthouse.
Facebook
5
5/5/2014
Part II: Electronic Evidence &
Challenges
You Can't Put Anything
y
g on the
Internet That Isn't True
(right-click to open)
Fake calls
http://literallyunbelievable.org/
My phone, your phone;
Their phone, our phone?
Phone App: SpoofCard
- Faked phone calls
- Call history of receiver shows as
legitimate call
- Only way to detect is to get phone
records
6
5/5/2014
Easier to spot something that
doesn’t “smell” right.
How many times have you:
a) Opened a spam email
and clicked on a link
b) Clicked on a “LinkedIn”
email that wasn’t really
LinkedIn
c) Opened a webpage that
puts a virus on your
computer
d) Thought how easily the
Manti Te’o hoax could
be repeated?
Email Scams, for
example
http://www.fbi.gov/scamssafety/e scams
safety/e-scams
The same caution and level of
scrutiny should apply to using
electronic evidence.
Text Messages: Revisited
Before
Heck, Autocorrect
Before
After
Look who’s texting
After
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5/5/2014
Catch ‘em in the act!
Texts
Text Applications

Statement






FakeBook – “Dislike”
Are they faking it?



Text Messaging:
Dozens of free
applications for texts.
Facebook: Estimated
11,000,000
,
,
fake
accounts
Twitter: Possibly
20,000,000 fake
accounts
Fakebook (in the U.K.)

Fake-A-Text (App)
ClearSMS.com
Bloove.com
GizmoSMS.com
(Free)
G
Group2Call.com
2C ll
OhDontForget (allows
texts to be delivered
at later time)
Hushed (app):
generates “throwaway” phone numbers
http://www.woodtv.com/dpps/news/strange/copswoman-stalks-herself-on-facebook_6107948 (Thank
you, John McNeil)

Facebook – Imaginary friends
(April 2013) http://www.dailymail.co.uk/news/article-2310926/JailedRapists-girlfriend-set-fake-Facebook-accounts-pretending-victimsmaking-bogus-confessions-LIED.html

Recently, there are instructions online to
create a fake page
 http://www.wikihow.com/Create-a-Fakehttp://www wikihow com/Create-a-Fake-
Facebook-Profile
 Show Jenkins FB spoof
8
5/5/2014
Part IV: Resources

Subpoena Guide for major carriers, Facebook, Twitter, etc.
Resources
 In Appendix


List of ISP (Internet Service Providers) contacts, fax numbers,
notes, and historical information

Facebook:
 319 cases involving the use of social media, with links to each case
○ http://blog.x1discovery.com/2012/07/23/mid-year-report-legal-casesinvolving-social-media-rapidly-increasing/
○ List of Cases across the US on Social Media:
http://www.x1.com/products/x1_social_discovery/case_law_2012.html
 http://www.search.org/programs/hightech/isp/
 Several Treatises on Social Media Evidence:
○ http://blog.x1discovery.com/2012/12/14/round-up-of-recent-social-mediaevidence-news-and-resources/
 Detecting
g fake accounts
○ https://www.facebook.com/notes/k-care-shop/10-ways-to-detect-a-
fake-facebook-account/480043898294
○ A copy of the letter you will receive responding to Facebook subpoena

Twitter:

Via Mark Scruggs: 5 Rules for Avoiding Malpractice w/
Electronically Stored Information, INCLUDING SPOLIATION

Archiving social media:
 http://familylaw.ncbar.org/newsletters/familyforumdec2012/fiverules
 Where to contact them, what they have, and what they will produce:
○ https://support.twitter.com/articles/41949
 Download entire Twitter History (Make this an RPD?)
Thanks to eDISCOVERY and John Patzakis (@patzakis)
 http://www.complexdiscovery.com/info/2012/05/31/social-media-
○ http://mashable.com/2012/12/19/twitter-archive-tweets-all-users/
archiving-and-collection-for-ediscovery/

More Resources

Boyfriend Tracking app?
 GPS tracking
 Illegal?
Subpoena Guide for Google:
 http://www.reputationdefenseonline.com/how-to-subpoena-google-legal-
department/

What Google really knows about you:
 http://thedroidlawyer.com/wp-content/uploads/2013/04/How-Much-
Google Knows About You jpg
Google-Knows-About-You.jpg
Retention of Information
Making your job easier

Get data off your client’s phone:

Simplify how texts look
 App: PhoneView (phoneview.com)
 https://play.google.com/store/apps/details?id
https://play google com/store/apps/details?id
=com.zeesoftware.emailnytexts&hl=en

Clark Walton (relianceforensics.com)
9
5/5/2014
Part III: Considerations

Using Social Media as evidence is only one aspect. How about advising
your clients in what they do day-to-day?
Lester Order






A) Personal injury and wrongful death action.
- Trial date approached, but was continued
- A 2nd trial date approached because alleged failure to disclose contents of a Facebook account
- Plaintiff’s attorney accuses Defendant’s attorney of “hacking” into Plaintiff’s Facebook account
- Defendant files Motion for Sanctions and Motion to Compel
- Plaintiff’s counsel is sanctioned for making wild accusations, fees to be determined at a later date
- Defendant files another Motion for Sanction: Spoilation of Evidence. They say deliberate
destruction of evidence by Plaintiff
- Expert
E
t testifies:
t tifi
He
H can recover mostt off the
th information
i f
ti that
th t was deleted
d l t d by
b Plaintiff
Pl i tiff
- Plaintiff admits that he deleted the Facebook photo evidence
- Court orders sanctions, but also orders jury instruction regarding acts of spoliation
- Personal Injury case is decided. Plaintiff wins $$ from jury.
- Defendants file Post Trial Motions
Court defers final judgment and orders production, in camera, all emails in Plaintiff’s “privilege log”,
and all emails/documents regarding spoliation of evidence. Documents to be provided to Defendant
Court orders that attorney-client privilege and work product doctrine do not apply to statements or
actions by Plaintiff or his counsel related to the spoliation of Facebook evidence
A bunch of other post-trial motions are filed, seeking additional sanctions against Plaintiff and
counsel, including dismissal of claim. Definitely other issues were present
Plaintiff’s counsel denies telling client to delete contents of Facebook
More Spoliation

Christou v. Beatport
Text messages requested in discovery
No attempt to preserve messages on iPhone
No text messages disclosed
Defendant said “I lost my iPhone and all saved
messages”
 Court had no basis to assume loss of phone was
anything except “accidental”
 Nevertheless, sanction is appropriate.
 Relatively minor sanction: Plaintiff may produce
litigation hold letter and evidence of failure to
preserve text messages. Jury may draw
inferences, as appropriate.




FINDINGS:
 Defendant’s counsel did go on Facebook and find photos
 Plaintiff’s attorney told client to “clean up” Facebook page.
 Plaintiff was told to delete other pictures from his
 To delete or not delete, that is the sanctionable question?
○ Lester v. Allied Concrete (Virginia)
Facebook page
 Plaintiff’s counsel had client take down page prior to
discovery response, so he could respond ‘truthfully’ at the
time of production
 His client reactivated the account,
account but still had deleted
photos prior to responding to the discovery request.

TOTAL SANCTIONS AGAINST ATTORNEY:
$542,000. Granted, not all because of spoliation.
Definitely other actions taken by attorney, but
spoliation of electronic evidence was heavily
discussed.
Spoliation

Gatto v. United Airlines (New Jersey)
The Google Power Searching classes:
http://www.powersearchingwithgoogle.com/course/ps/course.html
10
Patti’s Wonderful Websites for
Paralegals
Patricia F. Clapper, ACP, NCCP
Levine & Stewart
Chapel Hill NC
[email protected]
A big corporate law firm recently hired several cannibals. "You are all
part of our team now “ said the HR Rep during briefing. “You get all
the usual benefits and you can go to the cafeteria to eat, but don’t
eat any of the other employees”. The cannibals promised they
would not.
Four weeks later the managing attorney remarked, “You’re all
working very hard, and I’m satisfied with you, however one of our
paralegals has disappeared. Do any of you know what happened to
her?” The cannibals all shook their heads no.
After the attorney had left, the leader of the cannibals said to the
others, “Which one of you idiots ate the paralegal?” A hand raised
hesitantly, to which the leader of the cannibals continued, “You fool,
for weeks we’ve been eating associates and law clerks and no one
noticed, but noooo, you had to go and eat someone they would
miss!”
1
List of All NC Agencies
http://www.ncgov.com/government/agencies/ind
ex.aspx
Occupational Boards
General Contractors Board
www.nclbgc.net/index.html
North Carolina Medical Board
http://www.ncmedboard.org
North Carolina Board of Nursing
www.ncbon.com
Real Estate Agents and Brokers
http://www.ncrec.gov
NC Secretary of State www.sosnc.com
NC Voter Registration
www.ncsbe.gov/ncsbe
NC Dept of Corrections
www.doc.state.nc.us
www.vinelink.com
USPS
www.usps.com
PACER/Federal Ct System
http://www.ncmb.uscourts.gov/
2
Courthouse Forms and Courthouse
Contacts www.nccourts.org
Medical Records
www.medterms.com www.icd9data.com
http://www.lamblawoffice.com/medicalrecords-copying-charges.html
Medicare Nursing Homes
www.medicare.gov/NHCompare/home.asp
NC Child Care Centers
www.ncchildcare.nc.gov
Statistical Weather Data
www.wunderground.com
Language Translator
www.babelfish.com
Maps
www.map.google.com
www.terraserver.com/
Calendars
www.timeanddate.com
3
Archived Web Pages
http://web.archive.org
US Real Estate Records Online
www.netronline.com
Asset Searches
www.accurint.com (Lexis)
www.clear.thomsonreuters.com (Westlaw)
Google For Legal Professionals
www.findlaw.com
Attorney Referrals
www.lawyers.com
NC Crash Manual
https://connect.ncdot.gov/business/DMV/DMV%
20Documents/Crash%20Report%20Form%20In
struction%20Manual-DMV-349.pdf
NC Crash Data
http://buffy.hsrc.unc.edu/crash/
NC Insurance Point System
http://www.ncdoi.com/_Publications/It%20Pays%2
0to%20Be%20a%20Safe%20Driver%20Insuran
ce%20Points_CAU1.pdf
4
State Road Lookup
https://apps.dot.state.nc.us/srlookup/
Accident Sketcher
http://draw.accidentsketch.com/
US County Lookup
www.uscounties.com
State Employee Phone/Email Directory
http://www.ncgov.com/EmpDirSearch.aspx
Process Servers
www.napps.com
FREE credit reports
www.annualcreditreport.com
CardMunch is an I-app where you can
either manually enter contact info or take
a picture of a business card and turn the
info into contact information. You can
then add the contact information as a
LinkedIn connection.
Card2Contact is a Google App to store
business cards. Scan the card and it will
add the information to your contacts, or
just store a picture of the business card.
5
LogMeIn and TeamViewer are I-apps and Google
Apps which allows remote access to any PC
set to be a host computer. Use it on your
phone to connect to your work or home
computer.
CalenMob is an I-App that lets you access your
Google calendar on your I-device.
Goodreader is an I-app. The best feature of this
app is the annotation. Create text boxes, sticky
notes, clouds, lines, arrows or draw freehand.
Supports pdf, txt and office docs. Make
changes to a document and send it back to the
creator via the internet, Dropbox or Google
Drive.
Penultimate is part of the Evernote family
so your notes automatically sync to your
Evernote account. Take notes or draw
pictures then organize your notes and
pictures into notebooks. Share files or
entire notebooks in pdf format.
PhatPad is a more robust note taking app.
Create notes or pictures via freehand
writing, typing or voice recordings. Convert
your handwritten notes to text and share
via your online cloud storage or export as
a pdf document.
6
Trial Pad I-App that claims to “change the way you practice law”. It’s like
having your trial notebook on your iPad.
◆ Full electronic courtroom presentation capability on an iPad
◆ Present wirelessly with AppleTV (requires iPad 2 or later)
◆ Make multiple callouts from documents or depositions
◆ Highlight, annotate, redact, and zoom in on your documents
◆ View documents side-by-side, comparing pages
◆ Add exhibit stickers to documents
◆ Create reports of all your evidence with exhibit numbers
◆ Simple import process via Dropbox, WebDAV, email, iTunes, Photos
app, or other iPad apps
◆ Backup your case files and share with another TrialPad user
◆ Edit video clips, or take snapshots of frames of surveillance video
◆ Create Key Docs with saved annotations and callouts, then print or
email them with the annotations
◆ Have your expert mark up an exhibit and save it as a Key Doc for
closing
◆ Use the whiteboard tool to draw freehand
◆ Easily create separate case and witness folders
◆ All the important tools found in a desktop presentation program
◆ No need for cumbersome trial boards
◆ File formats supported: Adobe Acrobat PDF, JPG, PNG, TIF, MultiPage TIF, and TXT
◆ Also imports all audio and video file formats supported by iPad
TrialDirector – Has some of the same features as TrialPad at much less cost –
free!
IJuror - Use your iPad to help you pick your jury.
◆ Simply tap the seats to add juror information
◆ Quicker than pen & paper
◆ Share with your colleagues
◆ Store all of your trials in one location
◆ Look for patterns over time
◆ Email the jury information to any email address
◆ Easily print the email for access anywhere
◆ Configurable for seating arrangements of up to 60 jurors
◆ Add notes as the trial goes along
◆ Name view provides quick access to name and notes right at
your finger tips
◆ Drag and drop to choose jurors
◆ Drag and drop to choose alternates
◆ Drag and drop to dismiss jurors
JuryTracker - same basic features as IJuror at a cheaper cost.
7
TranscriptPad – manage and view your
deposition transcripts
◆ Carry all your transcripts in one app.
◆ Search across an entire case, a single
witness, or one deposition.
◆ Reference exhibits as you read the
transcript.
◆ Create a designation and assign an issue
code in
three simple “taps”.
◆ Create unlimited Issue Codes.
◆ Color code your Issue Codes.
◆ Flag important sections for later review.
◆ Add short notes to flags.
◆ Print or email detailed or summary reports.
DepoView – manage and view you deposition
transcripts
for free!
Fastcase – I-app and Google App providing
free legal research, yes, I said FREE.
Fastcase contains cases and statutes
from all 50 states and from the federal
government.
Rulebook – I-app providing access to court
rules and other legal authorities such as
the Blue Book. The App is free but you
will pay a fee to subscribe to the data.
Westlaw and Lexis both have apps if you
have a subscription already.
8
Key Ring is a free I-app and Google App
that allows you to scan all of those
savings cards on your key ring and have
them in one easy to locate place. Your
key ring will thank you for taking off all
that weight!
My Car Locator (Free) - use your phone
GPS to set your car’s location and find it
later.
7 Little Words – one word, addicting
AppShopper – Free or cheap apps for your
i-device.
TechRadar – My favorite geek tech website.
If you are in the market for any tech item,
look it up on this website. Also good for
finding free or cheap apps for all devices.
9
A man in a hot air balloon realized he was lost. He reduced altitude and spotted a
woman below. Descending a bit more he shouted, "Excuse me, can you help? I
promised a friend I would meet him an hour ago, but I do not know where I am."
The woman replied, "You're in a hot air balloon, approximately 30 feet above the
ground. You are between 40/41 degrees latitude, north, and 59/60 degrees west,
longitude."
"You must be a paralegal", said the balloonist.
"I am," replied the woman, "How did you know?"
"Well," answered the balloonist, "everything you told me is technically
correct, but I have no idea what to make of your information and the fact is, I am
still lost. Frankly, you've not been much help at all, if anything, you have delayed
my trip."
The woman pondered a minute and responded, "You must be an attorney."
"I am," replied the balloonist, "But how did you know?"
"Well," replied the woman, "You don't know where you are or where you are going.
You have risen to where you are due to a large quantity of hot air. You made a
promise which you have no idea how to keep, and you expect people beneath you
to solve your problem. The fact is you are in exactly the same position you were in
before we met, but now - somehow -- it is my fault."
10
The Ten UnUn-Commandments
for Paralegals
Alice Neece Mine
North Carolina State Bar
Do Not Practice Law.
Do Not Take Action That Is
Inconsistent With A Lawyer’s
Professional Responsibilities.
Do Not Assume Responsibility for
Lawyer’s Work Product
Do Not Mislead Others About
Your Role
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Do Not Disclose Client
Confidences.
Do Not Charge a Clearly Excessive
Fee
Do Not Accept Management of a
Trust Account Unless you are
Supervised by a Lawyer
Do Not Let Your Prior Employment
or A Personal Interest Create a
Conflict of Interest
Do Not Accept Compensation in
Exchange for Referring Clients or
Contingent on the Outcome of a
Particular Case.
Do Not Fail to Take Advantage of
Opportunities for Professional
Improvement
2
Certified Paralegals Rock
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