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Posts Tagged ‘social media eDiscovery’

Being in the legal technology field can be frustrating. Technology changes fast but the law moves slowly, deliberately, and often in convoluted ways. You have to somehow stay ahead of the technology curve while waiting for the courts to catch up. It wasn’t until 2006 that federal courts were able to get the basic rules in place regarding the handling of electronic evidence in litigation.

Social media is a particularly frustrating example. Several courts have issued rulings affirming that social media is discoverable in litigation. But for the most part, the case law has been evolving and maturing in spurts and stops. As we’ve noted before, the case law has been clearly evolving to indicate that social media is in fact discoverable in litigation.

No more ignoring social media in eDiscovery.

But there has been a lot of variance between courts in how much social media content is discoverable. Some courts have found only public profiles are discoverable and private messages were immune from disclosure. But for the most part, if parties could demonstrate that social media content is likely to reveal information about a party’s emotional, mental, or physical state that cannot be found through other means, that information is discoverable.

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The groundbreaking Zubulake case was important because it provided a complete and detailed list of factors to consider when producing email in litigation. In a series of five separate rulings across hundreds of dense pages of balancing tests, U.S. District Judge Shira A. Scheindlin outlined in Zubulake v. UBS Warburg what electronic evidence was discoverable in an otherwise unexceptional employment dispute.

Similarly, in a recent employment dispute, Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)the court has provided lawyers with a detailed list of factors to consider when attempting to acquire social media content for litigation. The broad discovery request in this matter included “photographs, videos, and blogs, as well as Facebook, LinkedIn, and MySpace” content that reveals the defendants “emotion, feeling, or mental state.”

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May will be “social media in the law month” on Frank, putting a spotlight on the ways social media is changing eDiscovery for small firms and personal cases. eDiscovery was once the sole concern of Big Law and large-scale litigation, but has increasingly become an issue in smaller cases for smaller law firms. In large part, that trend is being driven by the rise of social media evidence.

Dishon & Block Family Law Attorneys produced this neat infographic, “How Family Law Attorneys Use Social Media Evidence in Court Cases,” to illustrate just how widespread this phenomenon is. Consider that over 42 percent of all Americans are on Facebook and 250 million people are daily users of the site. And as of this year, 10 percent of American adults will be using Twitter. That means more Americans are not just living their lives online, but leaving a rich and valuable trail of digital records that is discoverable in litigation. That digital trail is driving many family, employment, and other small, personal cases, changing the litigation landscape in new and profound ways.

To lawyers, it means developing an expertise in obtaining and managing digital records from these sources. According to the 2011 ABA Legal Technology Survey, almost 40 percent of solo attorneys now regularly respond to eDiscovery requests for digital evidence.

Small and solo lawyers are learning some important lessons about the benefits and burdens of obtaining electronic evidence in litigation. Small firms can not only effectively conduct eDiscovery and forensic investigation, but these firms are often at an advantage when competing with big firms. Without legacy software and processes in place, small and solo lawyers can often adapt more quickly to the challenges of social media and eDiscovery. In addition, after some false starts and confusing decisions, the courts are clarifying and defining the scope and practice of  social media discovery.

This month, look for a roundup of social media and eDiscovery cases that are driving the law ahead into this new world, technology news that will change how you think about eDiscovery, and in-depth analysis of the ongoing trends. This week, Sharon Nelson and John Simek, well-known forensic examiners from Virginia will share some of their experiences in the trenches of eDiscovery.

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