Best Practices for the Collection of ESI

McGibney v. Retzlaff is a Federal case in the Northern District of California. Judge Beth Labson Freeman heard the Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction. Her initial comment was “this case sees the Internet at is worst.” See, McGibney v. Retzlaff, No. 14-cv-01059-BLF, 2015 U.S. Dist. LEXIS 79434 (N.D. Cal. June 18, 2015).

I see a much different issue in this case. The identification of potentially relevant ESI is sorely lacking. The Court was informed about harassment via Internet postings on Twitter, Facebook, and a blog. The Plaintiff asserted that the Defendant used many aliases on these social media platforms, as well as with email.

Preservation and collection of data should occur once potentially relevant ESI is identified. There was no reference in the opinion that listed the Plaintiff’s efforts to preserve the relevant electronically stored information. We see these issues time and again. Here are our recommendations to acquire relevant ESI:

1. Propound Discovery upon the social media providers. The Stored Communication Act generally prohibits the production of stored content without a search warrant or government subpoena. However, those who receive a Discovery Request can identify subscriber information and account login information. Subscriber information may be anonymous, though at times will provide a lead to develop further, such as the IP Address that may be resolved to a specific Internet Service Provider. People are creatures of habit and may use the same username with their ISP, as they do with their social media account(s).

2. Email tracing and serving Discovery upon hosting providers. Email is a transitory medium that contains valuable metadata within the email “header.” Email servers and IP addresses may be identified, as well as accurate (and sometimes obfuscated) email addresses. In the case of Google, the Gmail username refers to the whole account. Again, these are leads to be explored.

3. Preservation notices. These communications should include as much specific information as possible, including account names and date ranges. Time is also of the essence. The opposing party and the third-party who hosts the content should be put on notice, although third parties will be held to a somewhat lower standard in many cases. Nonetheless, a recipient’s obligations and the propounding party’s expectations should be clearly identified.

4. ESI Collection. Social media and email collections should conform to industry standards for the handling of digital evidence. Methods should be defensible and repeatable, and qualified individuals should perform these tasks. Certain software solutions should be used to eliminate the alteration of evidence and its metadata, thereby reducing the potential for spoliation. Also, declarations should be submitted, when necessary, to reduce the risk of inadmissibility for key evidence.