It might seem difficult to get excited over the state of Florida adopting it’s own rules for managing eDiscovery, effective last month. After all, they’re the 29th state to adopt such rules, and they are closely based on the amendments to the Federal Rules of Civil Procedure adopted at the federal level six years ago.
But the rules adopted in Florida also show that eDiscovery continues to be taken seriously as an ongoing challenge. Even if it it is taking an interminable amount of time for the United States’ judicial system to get these kind of eDiscovery rules in place, it’s nice to see that they continually evolve and mature. According to Law.com, “In all, the new rules demonstrate that the Florida Supreme Court has benefited from the experience of other states, federal courts, and local, knowledgeable practitioners to establish a well-thought-out framework.”
For example, the rules incorporate the principles found in The Sedona Conference Cooperation Proclamation, which encourage cooperation between parties, and even make it an obligation in litigation. Many lawyers and judges have long felt that the discovery process will implode if the process remains adversarial, but they had no way to change things. The Proclamation was once considered an impractical and unrealistic approach to eDiscovery, but enshrinement in state rules could change that. In addition, the new rules codify the proper basis for a court’s evaluation of proportionality and good cause in eDiscovery, providing a clear mechanism for reigning in eDiscovery costs.
We’re more than halfway to getting all states on board with the new rules of eDiscovery. It’s been a long and painful process, but let’s hope that states can continue to be flexible and forward-thinking in adopting these rules. The original amendments to the Federal rules of Civil Procedure were a good start, but they are already in need of updating. Rather than wholesale adoption of the already strained Federal Rules of Civil Procedure, let’s have more thoughtful implementation like this.
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Posted in Preservation on August 15, 2012|
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As it begins to dawn on people that social media is discoverable for litigation, it’s tempting to think that tweets, posts, and content can simply be downloaded from the provider. For example, The New York Times recently reported that Twitter is working on a way to retrieve old, expired tweets, and Facebook already has mechanisms for retrieving and downloading old posts. However, lawyers should not think they can rely on this approach for the demands of litigation.
Let’s start with the problems with Facebook’s export tool. The bottom line is that it is simply a snapshot of a Facebook page at a given point in time, and not a complete, forensically sound piece of evidence. If a user downloads a copy of content from Facebook after they receive a discovery request or regulatory inquiry, it may not contain all of the information associated with a post, like who shared a post. In addition, once a post is deleted, it’s deleted forever and likely unrecoverable. And Facebook’s functionality is limited to the account owner, so users cannot retrieve any public profile’s or fan page’s archive.
The Real Time Advantage
Nextpoint’s Cloud Preservation takes advantage of an authentication and authorization technology provided for third party applications by Facebook, commonly called OAuth. OAuth is the de facto standard used by Internet applications like Google and Twitter to share content. Cloud Preservation uses Facebook’s Graph API (which uses OAuth for authorization) to crawl private Facebook profiles capturing entire posts, all associated and linked content, and everything a lawyer would need for litigation or regulatory request.
Not only does Cloud Preservation capture Twitter content in real-time, but users can also crawl Facebook profiles anonymously, crawl other Facebook users’ profiles, and crawl age and country Facebook restricted pages. That means you are capturing content before it can be deleted or disappear into the cloud. While it may be possible to get social media content from a few service providers, it’s simply not credible to think it’s a sensible solution for true litigation preparedness.
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