Just as the advent of social media has changed the face of communication, recent lawsuits are defining the new field of social media law. Here’s a few trends to keep an eye on.
Fraley v. Facebook Inc.
Fraley v. Facebook Inc. was filed earlier this year, over the “Right of Publicity.” This is the legal right of an individual to accept or deny commercial use of their likeness and information.
The potential violation in question specifically relates to Facebook’s infamous “like” button. When a Facebook member “likes” a business page, that information is disseminated out among their friends’ news feeds.
Facebook, however, has taken things one step further. The sponsored ads which appear on a user’s Facebook page now list the profile pictures of any and all friends who have “liked” a company right under the ad.
The Plaintiffs feel that Facebook inappropriately turned their “likes” into commercial endorsement, thus breaching their Right of Publicity. Plaintiffs also claim that, since their likenesses were used, they are entitled to compensation.
Facebook’s dismissal request was denied in December 2011 by a federal judge. Previous cases similar to this one have been rejected by other courts, but this one looks like it will play out to the bitter end. Until now, specifics on what determines Right of Publicity varied from state to state, but this case verdict will likely establish universality going forward.
PhoneDog, LLC v. Kravitz
Noah Kravitz, a former employee of the review site PhoneDog, is being sued by his ex-employers for custody of his Twitter followers.
As part of his job description, Kravitz began a Twitter feed under the handle @Phonedog_Noah. Over the next few years, he gained around 17,000 followers. In 2010, Kravitz parted amicably with the company, and took his Twitter handle (changing it to @NoahKravitz) and his followers with him.
Eight months later, in July 2011, PhoneDog filed a suit seeking $340,000 total in damages: $2.50 per month, per follower. PhoneDog’s stance is that they invested substantial time and resources into growing that customer list of Twitter followers, and they consider it the confidential property of the company, and not Mr. Kravitz.
Kravitz states that PhoneDog told him to keep the Twitter account (as long as he continued posting occasionally), and that the original Twitter account was linked to his personal email address and used for personal tweets as well as professional ones.
This suit may ultimately define where exactly the boundaries separating personal, commercial, and intellectual property fall.
National Labor Relations Board
Historically, the focus of the National Labor Relations Board (NLRB) has focused on union companies. However, social media falls into the “concerted activity” provision of the National Labor Relations Act, which is not limited to protecting only unionized businesses.
This provision defines activities which are “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself” or bring “group complaints to the attention of management” as “concerted” and thus protected under the Act.
As a result, the NLRB has taken dozens of employers to court this year for social-media-related firings. Previously, employers often terminated employees who posted unfavorable statements about their employers or supervisors to the public Internet through social media. However, these posts are now established as protected by the NLRA, and are considered legitimate means of airing grievances over workplace conditions.
While many of these cases have been settled, expect more of them in the upcoming months as the NLRB continues setting new protection precedents for employees’ freedom of speech. And as the cases proceed, expect social media eDiscovery to play an increased role moving forward.
If you are considering which legal, legal technology or eDiscovery conferences to attend this year, you have come to the right place. There are several conferences to attend in 2012 that will offer invaluable information and training. This contains a list of events that range from the east coast to the west coast. Professionals from lawyers, law students, professors, legal assistants and more will get useful training and a boost for their 
careers at the events listed here. Links are listed at the end of the article.
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ACEDS (Association of Certified E-Discovery Specialists) Annual Conference is located in Hollywood, Florida, April 2nd through 4th, 2012. They offer a unique and knowledgeable networking approach, and have a full schedule of speakers and events. There will be many ideas to expand current contacts, meet experts and colleagues in the same field and top producing suppliers.
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The 14th Annual Sedona Conference on complex litigation – Class Actions, is May 3rd and May 4th, 2012 in L’Auberge Del Mar, Del Mar, California. This year they will be focusing on class actions.
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Another Sedona Conference will be held at the same location, but on October 11th and 12th, 2012 and will focus on Patent Litigation. The Sedona Conferences have limited participant availability, so if this is the one for you, register early to ensure your spot.
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Save the date for the 2nd Annual E-Discovery Leadership Summit. Held at the fabulous Ritz-Carlton in Fort Lauderdale, Florida. Wednesday, October 17th through Friday, October 19th, 2012. It’s an incredible opportunity to meet and focus on legal technology and how it continues to change and impact our communities.
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Legaltech an ALM event. New York 2012, January 30th through Feburary 1, 2012. The Hilton New York, 1335 Avenue of Americas, New York, NY. One of the largest and most important events of the year. Sessions are offered to lawyers on advanced legal topics, employees who generally work in a position to support lawyers & there are general sessions geared toward a Legal Tech audience regardless of skill level.
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Legaltech West Coast 2012. Mark your calendar. May 22nd to May 23rd, 2012. Westin Bonaventure Hotel, Los Angeles, CA. Another outstanding legal technology event, the details for this one still being displayed online. They will offer over 100 exhibitors and are offering the most advanced products for the legal profession.
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CVEDR, The Carmel Valley E-Discovery Retreat offers, great speakers, a great experience and a great location. The conference is held July 22nd through July 24th, 2012 in Carmel, California. There are numerous speakers lined up and the resort is available to stay in. Book early to reserve your spot. An interesting thing on their website is a letter called “Justify your attendance.” There is a “Letter to your manager” they offer to assist someone who may have difficulty getting it approved. Located under the “CVEDR Information” tab.
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ITECH Law (International Technology Law Association), World Technology Law Conference and Annual Meeting. May 3rd and 4th, 2012 at the Ritz Carlton, Washington, D.C., USA. This conference is for technology lawyers, law students and professors, practicing attorneys and more.
Not sure which event to choose? Take a look at the links below to help you determine the E-Discovery conference that will fit best in your schedule.
http://aceds.org/conference
http://www.thesedonaconference.org/
http://www.ediscoveryinstitute.org/
http://www.legaltechshow.com/r5/cob_page.asp?category_code=ltech
http://cvedr.com/
http://www.itechlaw.org/washington2012/program.shtml
Litigation newsletters, blogs and case law are full of cautionary tales about eDiscovery gone wrong. Hard drives that were reformatted, backup tapes that were lost and files that were never collected have cost dozens of companies millions of dollars in sanctions. In other cases, discovery disputes slow the pace of the litigation to a crawl, adding time and money to the outcome. Keeping the pace of the litigation moving is the one of the most effective way to lower the cost of eDiscovery in a small case. 
- Inventory what you have. As soon as you can, determine the "who," "what," "how," "where" and "when" of your client's records. Identify who the key players in the case, and talk to them to find out what software applications they use and how they use those applications. For example, does a user overwrite monthly reports in the ordinary course of business, or does she create a new file for each monthly report? Identify locations where these files stored, such as network drives, hard drives, databases and portable devices. Determine when the files related to the case would likely have been created and/or modified.
- Preserve the files. Nothing bloats a cases's timeline, costs and attorney fees like a claim of data spoliation, so make sure to preserve the files you have.
Issue a written or e-mailed "litigation hold notice" that informs custodians of their duty to preserve their records while the case is pending. Identify the date range and types of files that need to be preserved. Require custodians to acknowledge receipt of the hold notice and to affirm that they will comply with the request. Provide them with your name and contact information so they can call or e-mail you if they have a question about the kinds of records that need to be preserved.
Include your client's IT employees on the hold, and talk to them about the most efficient way to preserve and produce copies of the company's files. Isolating a backup tape from the date range at issue helps prevent a spoliation charge, but restoring data from a backup can be costly.
- Act early and proactively. Meet and confer early with opposing counsel. Rule 26 of the Federal Rules of Civil Procedure requires counsel to meet and confer about the scope of e-discovery within 120 days of the date the defendant is served, and many states have a similar requirement. Don't wait until the 119th day to meet and confer with opposing counsel. Be proactive and act early.
- Use your client's IT staff instead of hiring an eDiscovery vendor. Keep costs down by using inhouse resources to preserve and collect files. If your client's IT team has the know-how to copy hard drives and transfer files, you can save thousands of dollars by letting them take the lead on data collection. Put one person in charge of the process, and make sure he or she documents, step by step, the work that the team does on the case.
- Go native. In a small case with very little data, exchange native files with opposing counsel. You'll save your client the cost of processing the native files and converting them to pdf or tiff files. Save an unaltered copy of the files as they were collected in case a file's integrity is called into question. In most cases, however, it's the content of the files, not the way they were collected, that makes up the meat of the case.
As we gear up for 2012, its "out with the old and in with the new" or in the case of eDiscoveries, analyzing what worked well this year and carrying them over into the new year. Here is an attempt at predicting seven top eDiscovery trends in litigation and technological advances for 2012.
1. Social Media is here to stay.
There has been a substantial increase in electronically stored information (ESI) over the past few years. New varieties have emerged recently, such as cloud context, mobile to mobile communication, loose files, social media, structured files etc. More and more organizations are noticing that these types of ESI trumph file sharing through emails. Now this news can be a bit disheartening to companies that are afraid of change, but when dealing with eDiscovery requests it predicted that the social media trend shows no signs of fading.
2. Cost Shifting impacts the "American Rule."
For decades the "American Rule" stated that parties need to pay for their own production costs. Well, now more and more courts are considering eDiscovery vendors as the "21st century equivalent of making copies." It is predicted that in 2012 we will see an increasing amount of courts awarding winning parties their eDiscovery cost.
3. No more Data Hoarding!
Storing tons of unmanaged and unsupervised ESI has become increasingly dangerous when dealing with litigation risk. For organizations that have never or have rarely deleted files, cleaning up the digital home is important in minimizing liability.
4. Risk Assessment is a key component of eDiscoveries
With the advancement in software technologies, it has been more important for counsel manage their risk by deciding the various error/precision rates there could be. Software technologies have helped with statistical insight, allowing counsel to manage their risk and reward balance.
5. Expand to an International Mindset
International markets have begun to develop quickly and in some cases they are surpassing the U.S. Shifting to a more global way of practicing and thinking, particularly with regulatory compliance driven cases, will only benefit attorneys.
6. There will be a continued Maturation of the eDiscovery process
In 2012, Best Practices involving the corporate process will include regular status update meetings; managed time lines and progress; identifiable workflow and production requirements. When dealing with technology, mature organizations will continue to utilize central legal sources to support the discovery process instead of the standard informal management of cases. Numerous advantages to these processes will include a better system to manage the production of work.
7. Acceptance of Technology Assisted Review (TAR) continues to grow
Next year is predicted as being a pivotal year for TAR. Contrary to what the opposition thinks, TAR has proved to not only reduce costs, but yields more accurate reviews over the manual review with much less effort. Even though skeptics say it may not be legally defensible, it seems that it drastically aides in alleviating workflow with very little effort.
After recent computer break-ins in which the data of millions of users’ information was stolen, experts are left wondering about the security of the healthcare information in the future.
There have been hundreds of data breaches over the last several years, and the second largest of them occurred because of a reason as simple as a hacked password. Talk about low-budget eDiscovery skills!
Health breaches are a serious issue can leave many patients wondering about the safety of their most personal and private information.
If you own a healthcare company, and are wondering how to prevent such a breach of data, the following information will be useful to you.
First, you should perform a risk assessment. In an ever changing world when it comes to technology, you should continuously examine your risk when it comes to the information you control, and you must be constantly maintaining and updating your systems as such. Having an up to date system can be one of the best ways to avoid a tragic data breach.
Having properly trained employees is another key to avoiding data breach. Your employees must understand your practices and put them into place effectively. If your system is updated and then information changes, your employees need to be made aware of this right away. There needs to be consequence for being careless with information as well.
Develop policies and procedures, and stick to them. Make it easy for your employees and doctors to keep information safe and secure. The harder it is for your employees to follow your system, the less secure you are as a whole. Of course, you have to keep in mind the most important aspect of healthcare, which is the patient.
Be ready to respond in case there is an incident. Even the best policies and procedures and most up to date systems can’t control everything, and if something does occur, you should be ready to take action to prevent further damage. You want to avoid panicky, knee-jerk reactions that cause more harm than good. Part of training your employees should include instructing on what to do should a breach occur. Managing it is your best plan of attack once the worst has happened.
While data breaches may be inevitable, by following the above rules fairly closely, and always keeping your security plan at the forefront, you can manage anything that comes your way, including a data breach.
There are only two countries in the developed world that do not have any laws set into place protecting the privacy and security of their consumers: the United States and Turkey. Citizens of Europe, Asia and Latin America all have privacy rights. So why not in the United States?
It’s not there are no laws whatsoever surrounding privacy laws in the United States. Certain information such as health information and financial data is more protected than others, but for the most part, there are no laws set into place for companies using the private data of their customers.
The Federal Trade Commission, with limited authority, does its best to monitor and enforce the few laws that are available, but some lawyers have figured out that there is one simple way to not violate these laws: Don’t make specific promises regarding privacy. This is why when you read a corporate privacy policy, it may tend to be vague and more often than not it does not really describe the privacy policy that it holds.
While this has been going on for years, it has become much more of an issue in recent years with more and more websites and companies wanting private information from their customers, but not really disclosing how they will use it. More and more consumers are leery about giving out personal information because of these vague practices.
It also has an obvious potential impact on eDiscovery. Data privacy laws vary greatly from country to country and the increased use of offshore hosting facilities and/or overseas servers to store and deliver data is creating confusion. Its not clear if – or how - a company will handle cross-border eDiscovery disputes between countries with different laws (when one jurisdiction tries to impose its rules on another). Its an area that bears monitoring.
For these reasons, many companies would like to have a way to provide privacy protection policies that matter to their customers, but none of these companies wants to put themselves at risk of being disadvantaged when compared to their competitors.
So the answer to the question of whether or not the United States needs a data privacy law is most definitely a yes, but whether or not it will happen is another story altogether. While some in Congress would like to fix the problem, the ones that can do something are pushing the problem down the road. With other looming issues on the horizon, data privacy laws seem to be a small problem at best. For the time being, consumers will just have to be extra careful with the information they give the companies they use, and businesses and corporations will just have to continue writing the somewhat vague and nondescript privacy policies they have been writing for the past several years.
TERIS, a leading provider of eDiscovery, data hosting and related legal support solutions to corporate legal teams and law firms, today announced that kCura, developers of the e-discovery platform Relativity, has welcomed TERIS into the very elite group of partners who have achieved “Best in Service” status.
Established in 2010, the Best in Service program recognizes Relativity partners who do an exemplary job of maintaining a commitment to delivering a great customer experience with Relativity. Partners were evaluated on technical capabilities, volume of data and cases under management, and the strength of their client references.
"We are extremely honored that kCura has recognized TERIS as a Best in Service partner,” said Kip Hauser, TERIS Chief Operating Officer. "Our goal is for each of our clients to have an exceptional experience and come away with an increased knowledge of the eDiscovery process after working with TERIS. We've invested heavily in our technology, as well as our employee training, to make sure our staff is highly knowledgeable with all aspects of Relativity, creating a premier hosting and review experience for our valued clients. We appreciate and look forward to our ongoing partnership with kCura."
“It is important to us that Relativity users have a positive experience with the software,” said Andrew Sieja, president and CEO of kCura. “The Best in Service program allows us to recognize our partners who provide high-quality support, infrastructure, and product expertise to their customers, and we’re proud to identify TERIS as one of these exceptional partners.”
About kCura - Recognized as a “Leader” in Gartner’s 2011 E-Discovery Magic Quadrant, kCura are the developers of the e-discovery software Relativity, a web-based platform for the review, analysis, and production of electronic data. Relativity has more than 52,000 active users worldwide from organizations including the U.S. Department of Justice and 95 of the top 100 law firms in the United States. Relativity also powers Method, kCura’s workflow and notification system for managing legal hold and risk assessment processes. kCura helps corporations, law firms, and government agencies meet e-discovery challenges by installing Relativity and Method on-premises and providing hosted, on-demand solutions through a global network of partners. kCura has been ranked the 42nd fastest-growing technology company in North America on Deloitte’s Technology Fast 500 and named one of Chicago’s Top Workplaces by the Chicago Tribune. Please contact kCura at info@kcura.com or visit www.kcura.com for more information.
About TERIS
Founded in 1996, TERIS is one of the nation's leading litigation support firms, providing sophisticated eDiscovery and related legal support solutions to corporate legal teams and law firms across the U.S. and internationally. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, Dallas, Houston, and Chicago. To learn more about TERIS, visit TERIS.com or follow the company on Twitter at www.Twitter.com/DiscoverTERIS for Facebook at www.Facebook.com/DiscoverTERIS.
Media Contact:
David Kaufer
206 262 7302 Office
425-275-8814 Mobile
david.kaufer (at) KauferDMC.com
Cloud computing programs are essentially a set of computer resources that are joined and powered by software and delivered over the Internet. They reside in data centers away from companies and firms - thus, "in the cloud." Cloud computing has become quite popular in recent years, and with good reason: They are convenient and easy to use, and practically eliminate the need for storage and memory devices.
Of course, there is a downside to these systems, and if you don’t manage your cloud effectively, your valuable data can end up in the wrong hands. While many experts say the risks are minimal they are still there, and you should make sure you know what they are and how to protect yourself. Some risks of doing your e-discovery in the cloud include:
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The loss or alteration of data in the cloud
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Violation of privacy laws by illegally disclosing the jurisdiction in which the cloud is located
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Unintentionally waiving the attorney-client privilege by mixing data or disclosing information to unauthorized third parties
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Failure to implement and monitor litigation holds in a correct and timely manner
These risks are not difficult to manage if you are aware of them however, and one way is by insisting on certain items from the cloud provider. Your agreement should make certain that:
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None of your date can be stored outside of the United States
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You know how the cloud will hand litigation holds
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You know how your metadata will be created and stored in your cloud
By monitoring these things, you can minimize your risks drastically, and you should definitely keep on top of the cloud company you are using.
Cloud computing is not something that is going away, and will probably become more and more prevalent in the future. Of course, as with most of these types of technologies, the security will become much more advanced as well, meaning that you won’t have to worry about it nearly as much.
Until then, it is your responsibility to ensure that your data is safe, and that the methods in which the company you are using is reliable. There are many options these days for cloud computing, and there will likely only be more in the future. By doing what you can to learn exactly what the risks are now, and making sure you have taken the necessary precautions to protect yourself, you are ensuring that your private and personal data is safe and secure now and in the future.
There is a new trend in the courtroom, and it has caused a massive change in personnel, according to legal experts everywhere. What is this new and growing trend in the legal world you may be wondering?
The new position in the courtroom is becoming more and more common these days, and soon may be just another common position. Called eDiscovery “special masters”, these positions were created by legal organizations everywhere to help manage the influx of new information that is constantly being brought about by the e-discovery technology. Experts everywhere are concerned about this.
In fact, this new and upcoming trend has caught the eye of legal industry officials and other legal experts from everywhere, according to these new and forthcoming reports. Judge Joy Conti of the US District Court for the Western District of Pennsylvania is one such expert who has formed an opinion, and is in the middle of launching a pilot program with the hopes to dictate the work with eDiscovery special masters. This effort has established an approval system for anyone who may be acting as special master. This is done in order to make sure that law firms and other legal entities are using their e-discovery tools efficiently and effectively. As it is still a program that is in process, it has yet to be known whether this pilot program will work in the future, but experts are hopeful that it will be an effective and useful tool.
Of course, as eDiscovery has gone through the legal sector, there have been many new trends that have suddenly emerged as of late. Because the eDiiscovery provides useful information to legal organizations and legal experts at extremely high rates that have never been seen, there are many things that industry has to do to adapt to in order to leverage it. It may be a long and difficult journey, which is what experts want to avoid.
There have been other reports that explain a ruling by the Advisory Council for the US Court of Appeals for the Federal Circuit, which makes an attempt to encourage better navigation through the piles of information presented because of so many e-discovery requests.
Only time will tell where this growing trend of eDiiscovery special masters is going.
Due to the exponential growth in electronic business documents, many firms and companies are discovering the benefits of partnering with a dedicated and competent litigation support services firm for Managed Services, including:
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Managing the data and workflow outside of retained counsel can reduce exposure to costly risks – which is especially important considering how complex, prolonged and unpredictable eDiscovery matters can be
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Reducing the costs of managing internal staff and systems in-house, which do not pencil-out – especially considering the cyclic nature of eDiscovery matters.
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