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On the heels of National Cybersecurity Awareness Month in October, the second panel discussion at the Fifth Annual Gibbons E-Discovery Conference dealt with pressing issues involving cybersecurity and their effect on private industries.

Moderated by Gibbons Director and senior E-Discovery Task Force member Jeffrey L. Nagel, Esq., the panel opened with a presentation by Erez Lieberman, Esq., Deputy Chief of the Economic Crimes Unit and Chief of the Computer Hacking and Intellectual Property Section, Office of the United States Attorney, District of New Jersey. Mr. Lieberman discussed several cases of high profile cybersecurity breaches in recent years and the government’s role in those cases. Mr. Lieberman identified the various types of cybercrimes affecting businesses and provided the audience with a unique understanding of the interaction and coordination between his office, the Secret Service, the Federal Bureau of Investigations, and private companies. Mr. Lieberman also addressed the effect of data breaches on the public sector and the impact of public perception on the business.

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In October 2010, Facebook announced a new Download Your Information (“DYI”) feature, billed as “an easy way to quickly download to your computer everything you've ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information.” The Facebook announcement included a short video detailing how to use the feature. Cnet TV has a more in-depth video. Craig Ball also wrote an article about this feature in the February 23, 2011 issue of Law Technology News.

Introduction

The DYI feature is potentially useful to attorneys in at least two ways: preservation of their client’s electronically stored information (“ESI”) and discovery of an adversary’s ESI. If your matter involves an issue that will likely require your client to produce evidence from his or her Facebook account, it may be advisable for your client to preserve the evidence by downloading his or her Facebook information. It is generally better to err on the side of preservation than to risk the possible penalties of not preserving evidence. Read more about the risks of failing to preserve ESI here. Similarly, if you think that your adversary’s Facebook account contains ESI that may be relevant to the prosecution or defense of a claim, then it may be wise to demand that the adversary preserve that information by using the DYI feature and produce the downloaded files. But, how effective is the DYI feature as a discovery tool? And, is there any way to be sure that the adversary is not hiding any information?

Testing the DYI Feature as an E-Discovery Tool

The DYI feature rolled out to more than 500 million Facebook users over the span of a number of months. When it finally hit my account, I decided to test it out to determine its usefulness as an e-discovery tool. Being a bit of a cynic, my main concern was whether the feature archives deleted content in the event that an unscrupulous adversary intentionally deletes relevant Facebook information. Will the DYI feature uncover the deleted content? I decided to investigate.

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“Cybersecurity Law and Policy: Changing Paradigms and New Challenges” is an all-day conference featuring seven break-out sessions and over 35 speakers and panelists. This seminar is part of the Cybersecurity Law Project, a collaboration between the Gibbons Institute of Law, Science & Technology at Seton Hall Law School, Rutgers School of Law-Newark, and the Bergen County Prosecutor’s Office, which promotes specialized legal training in the emerging area of cybersecurity law to law students and practicing attorneys.

This event will be held at Seton Hall Law School on Wednesday, June 8, from 8:30 am to 4:45 pm. Admission is free but, registration is required. Four New Jersey and New York CLE credits will be offered to attorneys. To register, click here.

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