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Archive for January, 2012

A decade ago the Zubulake case forced the legal profession to take email seriously in litigation. At that time, many lawyers still purposely avoided collecting electronic records for litigation because it was too much of a hassle. Oddly, there are lawyers today that operate under the assumption social media is an unsettled matter that can be ignored. While it’s true that there hasn’t been a truly landmark case to scare the profession into action, there is no mistaking the emerging and consistent case law in this area. If there was one clear trend in the evolving social media case law in 2011, it was that a lawyer’s social media discovery obligation is the same as for any other media

Likely the most arresting case in 2011 was Lester v. Allied Concrete Co., in which attorney Matthew Murray drew the court’s ire for telling his client to clean up potentially embarrassing material from a Facebook page. The plaintiffs in this wrongful death suit had shown particular interest in photos of Murray’s client wearing an ‘I ♥ hot moms’  t-shirt. While there may be a certain logic in his suggestion, Murray’s directions seem to indicate that he thought social media content was not subject to the same spoliation laws as other evidence. This court made it clear that deleting or ignoring social media content is unacceptable in litigation.

The other clear trend in social media case law is towards native production of evidence. It may seem absurd to an outside observer, but digital evidence is still often presented in court printed out on paper. In Griffin v. State, the court overturned a murder conviction at least in part over a failure to authenticate evidence obtained from a MySpace profile, which had been presented as a printout.

The courts also continued to confirm that social media is broadly discoverable. In Zimmerman v. Weis Markets, Inc., case further confirmed that social media is broadly discoverable. This case confirmed the earlier McMillen v. Hummingbird Speedway Inc. which established that when sharing information on social media sites there is no expectation of privacy.

Other notable cases include EEOC v. Simply Storage, which applied broad social media discovery claims to a government agency, and Largent v. Reed, which is worth reading for the long and detailed opinion on electronic discovery of social media. A potentially important pending decision is the PhoneDog case, which could establish ownership for Twitter and other social media accounts.

These cases may be some of the more notable social media-related maters from 2011, but are by no means unusual. The general trend in social media discovery is that the content is considered Electronically Stored Information (ESI) just like email and other digital data. Courts have consistently applied the Federal Rules of Civil Procedure to social media, including  Rule 34(b) which requires that ESI be produced “in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”

One major change, which was announced this month but has been in the works for a while, comes from FINRA, the regulatory agency of the securities industry, which issued Regulatory Notice 11-39 on the use of social media. The updated rules now clearly direct firms to apply the same  record retention policies to social media as they do to any other content.

The emerging, ongoing trend continues- social media is treated no different than any other media types. That’s always been Nextpoint’s position, but it’s nice to be continually validated by the justice system.

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Recently, Michael Roach’s of Law Technology News tapped us for our thoughts on “buzzwords” for his article Vendor Perspectives on This Year’s E-Discovery Buzzword. Needless to say, it got us thinking about the future lexicon of EDD and thought we should share our list and look for comments and additions from our readership here.

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High On Our Buzz-worthy Scale:

Cloud discovery:  We are confident that this is the year that ‘cloud-discovery’ overtakes ‘e-discovery.” More data residing on cloud servers with the expansion of corporate social media, cloud-based email, Google docs, Microsoft 360, etc. Wasn’t too long ago that discovery became e-discovery. We are likely to see the progression continue as “electronic” becomes archaic.

Social media discovery: The things that make social media popular –the instant and shared nature of the communications– creates new challenges within organizations for preservation and discovery. This will be a hotbed of discussion and thought in 2012. Be Prepared >

Machine learning: One application of machine learning is making it possible for computers to assist in the relevancy review process by recognizing responsive documents in e-discovery. Thanks to a lot of smart research, the application of advanced machine learning algorithms in e-discovery shows promise to be as effective as human reviewers.

Multi-tenant and mobile-enabled: The true test of whether applications are built on pure cloud architecture, these will surely make their way into the legal technology vocabulary.
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The Buzz Is Over:

Predictive coding: This term has always promised much more than it ever could deliver…though it sure sounds great.  A more accurate description might be “technology-assisted review,” but this is still too vague to be very meaningful.

ECA or Early Case Assessment: This is a perfect example of silly marketing jargon used within the industry. From the moment you are retained on a case, you are (or should be) making a clear, thoughtful case assessments for your client. Is that EARLY? Isn’t it just TIMELY? Maybe some lawyers can magically assess a case before it even materializes? Are there LATE case assessments? Or maybe TARDY case assessments? We think it’s time to officially put this one to rest.

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Nextpoint Updates for 2012

We just released a bevy of customizable review features in Discovery Cloud. Soon, we will also be introducing analytical machine learning in Discovery Cloud, which will address the growing interest in technology-assisted review and attorney-less review. And as mentioned in our previous post, we will be “shattering the old production paradigm.” Stay tuned…

What do you think are going to become the “buzzwords” in the world of discovery 2012? We welcome your feedback and additions to this list.

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There has been a lot of consternation in the legal blogosphere lately about the cost of production in e-discovery, including here, here, and here. Most of the attention is focused on improving the review process in order to limit the scope of production. But there is another, rarely discussed point at which the whole discovery model breaks down- the actual delivery of data to opposing counsel.

The Sedona Conference has published guidelines for making production more effective, but that guidance is primarily focused on the form of production- paper, PDF, TIFF, or native formats. This is a useful discussion to have, since a lot of needless cost and complexity comes from the stubborn insistence of many parties on producing in image or paper. But what is not often addressed is the seemingly obvious and important question of how to transfer data to opposing counsel. It is absurd that, despite all of the advances in communications and storage technology, the production process often involves the producing party putting data onto a disk and physically sending it to the other party. Not only is this process inefficient and insecure, but hopelessly archaic.

The Internet has revolutionized the way that we share and exchange information, but e-discovery attorneys are stuck with familiar old habits when it comes to production. Nextpoint believes that digital records are best kept in native, digital formats, and should be converted or processed as little as possible. This is a conversation we think more attorneys should be having, and you can look for some exciting news from Nextpoint in coming weeks that will shatter the old production paradigm.

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Having been involved in trial support for more than a decade, we know that chaos and last-minute revisions are often part of litigation. We’ve also seen a lot of complicated and convoluted solutions for managing trial evidence on site come and go over the years. That’s why we think litigators everywhere should love Trial Cloud on the iPad.

Like the rest of the legal profession, litigators are struggling to deal with the explosion of data in litigation. Trial evidence is rarely something a lawyer can easily work with on the road, not just because of the volumes involved, but because of the security risk involved in carrying around a laptop full of trial evidence. As we’ve documented, it’s just not wise to carry highly confidential information on hard-drives or printed out in briefcases. Nextpoint’s answer is simple- make the same trial support platform you’d access on a desktop available on the iPad. (more…)

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There are lots of reasons why organizations are thinking about social media discovery these days, but there is very little information available. Fortunately, we’re something of experts in this area, and we’re offering a free, downloadable, and easy-to-follow guide for managing the discovery of social media. Visit our Ten Steps to Social Media Discovery Readiness page to get a free copy.

The 10 Steps to Social Media Discovery Readiness eBook is available as a PDF and provides straightforward, jargon-free directions for preparing for discovery of social media. We’ve based our model on battle-tested principles that we’ve developed over the years helping clients manage all kinds of complex litigation. These principles, boiled down to simple guidelines like “Know Your Social Media,” and “Lather, Rinse and Repeat,” provide a framework and foundation for a defensible social media discovery strategy.

Click here to download.

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