by Julia Romero Peter, Esq.
In Gordon v. Kaleida Health, No. 08-CV-378S(F), 2013 WL 2250579 (W.D.N.Y. May 21, 2013), the court dismissed without prejudice Plaintiffs’ motion to compel Defendants to meet and confer to set up a protocol for using predictive coding (also known as technology assisted review or TAR); or in the alternative, have the court impose a protocol on the parties. In the underlying action, Defendants’ hourly employees sued Defendants for unpaid wages and overtime pay under the FLSA and state law.
For over a year, the parties tried to reach an agreement on a keyword search protocol for reviewing Defendants’ 200-300,000 e-mails. At a discovery status conference on June 27, 2012, the court, displeased with the lack of resolution; directed the parties to the use of TAR and the opinion in Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012). In Da Silva Moore, the court approved using TAR to review in excess of three million e-mails. The court requested the parties to submit either a joint or their own protocols for a keyword search protocol to be established by August 14, 2012. In a July 20, 2012 decision and order, the court mandated completion of ESI discovery by October 23, 2012.
Taking heed, the parties attempted to establish a protocol via email exchanges. Eventually, Defendants notified Plaintiffs that they planned on using TAR. On September 27, 2012, they also objected to Plaintiffs’ ESI consultants being a part of discussions regarding using TAR and setting up a protocol.
In the motion at hand, Plaintiffs contended that Defendants would not discuss with Plaintiffs issues germane to the establishment of an ESI protocol with the involvement of Plaintiffs’ ESI consultants. Notably, Plaintiffs asserted that Defendants would not provide information relating to their selection of the seed set (the initial set of documents the computer uses to propagate coding on the remainder of the document population). Defendants argued that they did not refuse to “meet and confer,” but that they objected to Plaintiffs’ ESI consultant D4’s participation in the meetings. D4 previously performed work for Defendants in the same matter. Further, Defendants pointed out that in contravention to Plaintiffs’ alternative request, “courts do not order parties in ESI discovery disputes to agree to specific protocols to facilitate a computer-based review of ESI based on the general rule that ESI production is within the ‘sound discretion’ of the producing party.” Defendants also highlighted that in Da Silva Moore, the court did not mandate defendants to hand over the seed set documents to plaintiffs, but that defendants voluntarily provided them.
Ultimately, in light of Defendants’ willingness to “meet and confer” with Plaintiffs and their ESI consultants, excluding D4, to discuss Defendants’ ESI review employing TAR; the court dismissed Plaintiffs’ motion without prejudice.
by Julia Romero Peter, Esq.
In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., No. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the court held that defendant Biomet’s use of keyword culling and de-duplication in conjunction with predictive coding (technology assisted review) satisfied its discovery obligations.
In 2012, defendant Biomet began producing documents in a multidistrict products liability action that ultimately became consolidated in the United States District Court of the Northern District of Indiana. Biomet started identifying and producing documents despite certain plaintiffs’ counsel warning Biomet not to start production until the Judicial Panel on Multidistrict Litigation decided where to centralize the cases.
To identify relevant documents, first Biomet used keyword searching and de-duplication. The keyword culling decreased the document population from 19.5 million to 3.9 million documents and attachments. De-duplication reduced this number further to 2.5 million documents and attachments. Biomet performed statistical sampling of a random sample. It projected at a 99% confidence level that between .55 and 1.33 percent of the unchosen documents would be relevant and 1.37 and 2.47 percent of the initial 19.5 million documents were relevant. Biomet’s methods had found a notably higher 16 percent.
Subsequently, from the 2.5 million that resulted from the keyword and de-duplication methods; Biomet used technology assisted review (TAR) to determine the relevant documents to be produced. At the time of the court’s order, Biomet’s ediscovery costs were approximately $1.07 million. The costs are expected to amount to $2 to $3.25 million.
Plaintiffs’ Steering Committee argued that Biomet’s use of keyword culling “tainted the process,” asserting that it was less accurate than using TAR. They sought to have Biomet redo the processing through production process using only TAR, starting from the original 19.5 million documents. In addition, they sought to have plaintiffs and defendant “jointly enter the ‘find more like this’ commands” during the TAR process. Biomet objected that “starting over would cost it millions.”
The court denied the Steering Committee’s requests. In finding that Biomet’s methods met its discovery obligations, the court noted, “The issue before me today isn’t whether predictive coding is a better way of doing things than keyword searching prior to predictive coding . . . .” It further noted that even if TAR could identify more relevant documents than keyword searching, as asserted by plaintiffs, it would cost defendant potentially millions of dollars. The court applied Federal Rule of Civil Procedure 26(b)(2)(C) to “find that the likely benefits of discovery . . . equals or outweighs its additional burden on, and additional expense to, Biomet.” The court arrived at this conclusion even after considering a number of ostensibly compelling factors, including “the needs of the hundreds of plaintiffs in this case, the very large amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of this discovery in resolving the issues . . . .”
The court assumed that Biomet would be amenable to “meeting and conferring on more reasonably-targeted search terms and to producing the non-privileged documents included in the statistical sample.” It also stated that if the Steering Committee wanted documents only retrievable by redoing the processing through production steps the Steering Committee would have to pay the costs for doing so.
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This month marks the 17th anniversary since the founding of what is now TERIS. On June 5, 1996 company founder and CEO Stefan Wikstrom took the plunge into entrepreneurship with the founding of what was then "American Legal Corporation" (or ALC). The company later morphed into ALC Legal Technology before successfully rebranding itself as TERIS in January, 2009.
The legal industry has dramatically changed in the nearly two decades since Stefan served his first client and TERIS has continued to grow and evolve with the changes over time. We sat down to talk to Stefan to get some thoughts about the journey:
- How did you first get into the litigation support industry?
Luck brought me into the industry - my first job out of college was with a company that provided similar services in the legal industry - I had no idea the legal services space was as big as it is and the experience really opened my eyes to the industry (and potential). After working in it for a few years I felt that I could provide clients a better experience with a much higher level of service and performance...so I started my own company.
Over the years I've been approached many times by groups wanting to buy my business. Of course back then I thought I would have been out of the industry by now. Looking back, I'm very glad I didn't sell the business because of the exciting changes and growth we've experienced - especially the past 10 years. There have been so many changes in technology and these changes are consistently changing the dynamics within our organization and service offerings.
- What has surprised you most about working with (TERIS or litigation support)?
How fast we grew - it really took off. Also how intense and unpredictable this industry is. You hardly ever know what you're going to get. It can be very slow one day and then completely buried the next day. There really is no way to totally plan/predict because this industry is so reactive. We can only be so proactive in our sales efforts, that's why marketing is so important (to stay top of mind with clients for the times when projects do come up).
- What do you wish everyone knew about TERIS?
How talented and large our professional services team is. We have very strong technology team with a ton of bench strength. We have more than a dozen JDs and a tremendous number of professionals with legal software certifications. Also, how successful our managed service program has been in terms of reducing costs - and increasing efficiency - for large corporate clients.
- What do you find most challenging about this industry?
The fact that technology changes so fast - being a technology service provider we need to stay on top of the latest technologies in a rapidly changing environment to ensure we are constantly providing our clients with the best service in the industry.
- Who are your typical clients?
Early on it was almost exclusively attorneys and paralegals within law firms. Within the past 10 years this has changed and now a large part of our clientele are large corporations - both their legal teams and other divisions within the company. I think a lot of people would be surprised to learn how much work we're now doing for large corporations. When I started the company I always envisioned working with corporations but law firms were my direct experience/skill set so I targeted them first. But I always had an eye on corporations and knew it would build over time.
- What has been the scariest part of managing the business?
Probably the scariest step for me and for the company was when we decided to rebrand the company (in 2008). I wasn't really sure how clients and the industry would react but we felt like it was important to project the kind of company we had evolved into - which was a leading technology specialist. In hindsight it went great - it couldn't have gone any better and helped position us for where we are now.
- What would you say are some of your strongest beliefs about why TERIS has been so successful for 17 years?
Integrity. This is the key value we look for and reinforce in our team. This commitment has helped (and continues to help) us build strong long-term relationships with our clients (who we very much appreciate) and are the corner stone to our success.
- What might someone be surprised to know about you?
I competed in college athletics and used this competitive drive to build our business. Also, many people probably don't know I was born and raised in Stockholm Sweden. [Editor's note: most people also probably don't realize that Stefan is a former Pac-10 javelin record-holder for the Washington State Cougars].
- What's your first memory of (something related to the business)?
When I first started the company I sold during the day and did the production work myself at night. One night I was having dinner with my wife and at 7:30 the phone rang with a call from a client for an urgent project. It needed to be turned around and completed by the next morning. I cut the date short, went straight to the facility and sent it to the client the next morning (I barely slept). The entire first year I pulled double duty (sales and production). Initially I hired one employee to help but there were often bigger projects that needed both of us.
Building TERIS over the years has been a real privilege and a great ride so far. Our success over the years is directly attributed to the quality of our employees and leadership team. I'm very excited to see how we'll continue to evolve and change as we celebrate future anniversaries.
By Julia Romero Peter, Esq.
The Federal Trade Commission and International Trade Commission recently have revised its ediscovery rules. Both sets of rules aim to expedite the ediscovery process, ease discovery burdens and clarify privilege procedures.
FTC’s Revised Rules
On November 9, 2012, the FTC’s revised rules on ediscovery went into effect. These rules cover the compulsory process (16 C.F.R. §2.7), privilege claims (16 C.F.R. §2.11) and the duty to preserve information (16 C.F.R. §2.14(c)).
Rule 2.7 authorizes the Commission to issue a subpoena or CID ordering the recipient to testify or produce relevant material regarding a matter under investigation. Electronically Stored Information (ESI) is defined as “any writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations stored in any electronic medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” This includes metadata.
Rule 2.7 also requires a respondent to meet and confer with Commission staff “within 14 days after receipt of process or before the deadline for filing a petition to quash, whichever is first, to discuss compliance and to address and attempt to resolve all issues.” Any privilege issues likewise should be raised with the Commission.
Rule 2.11 describes the specifics for withholding privileged material. Privilege logs must be provided in a searchable electronic format and contain certain information.
Rule 2.11 also states that an inadvertent disclosure does not act as a waiver if the disclosure was inadvertent and the privilege holder “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error, including notifying Commission staff of the claim and the basis for it.” The Commission must “promptly return or destroy the specified material . . . .”
Finally, Rule 2.14(c) provides that a respondent is relieved of its duty to preserve relevant information “after a period of twelve months following the last written communication from the Commission staff to the recipient or the recipient's counsel . . . .” This does not remove any obligation of respondent to preserve information for other investigations or litigation.
ITC’s Revised Rule
On May 15, 2013, the International Trade Commission revised its ediscovery rule related to Section 337 investigations (19 C.F.R. §210.27). The rule will be effective 30 days after publication in the Federal Register. The revisions bring the rule more in line with Federal Rule of Civil Procedure 26(b). Generally, the revisions limit discovery when unduly burdensome or costly and address privilege issues.
The first revision permits a party under certain circumstances not to produce requested ESI if it is “not reasonably accessible because of undue burden or cost.” It also requires an administrative law judge to limit discovery if it is duplicative or “can be obtained from a less burdensome source” or where “the burden or expense of the proposed discovery outweighs its likely benefits.”
The ITC revisions on privilege claims describes a “uniform set of procedures” for making privilege claims. Claims must be “expressly” made when a party responds to a discovery request. Moreover, privilege logs must be produced within 10 days of making the claims. The ITC “believes discovery will be most efficient when relevant privilege and work product issues are identified as soon as possible.”
The revisions also describe procedures for addressing inadvertent disclosures. Administrative law judges will need to apply federal and common law when deciding on the consequences of inadvertent disclosures, including whether the privilege holder “took reasonable steps to prevent disclosure” and other factors set forth in Federal Rule of Evidence 502.
In summary, the FTC stated that its foregoing revised rules “will streamline the FTC’s investigatory process [and] make updates to keep pace with electronic evidence discovery . . . .” As a policy, the FTC stresses cooperation and “expects all parties to engage in meaningful discussions with staff to prevent confusion or misunderstandings . . . .” Similarly, the ITC enacted its revisions with the hopes of cutting costs, decreasing discovery burdens and disputes and expediting resolution of Section 337 investigations. It remains to be seen whether these hopes will come to fruition.
The knowledge and content management magazine KMWorld listed Relativity, an eDiscovery platform developed by kCura, as a trend-setting product of 2012. But Relativity is more than a trend. This software has become a game-changer and labeling it as a trend elicits an impermanence that undermines the credit this product deserves. Like the Ford Model T or the Internet, Relativity is establishing a precedent for the new era of eDiscovery.
Even though this product has over 75,000 active end users, including the U.S. Department of Justice and 95 of the top 100 law firms in the U.S., according to KM World, Relativity still remains relatively unknown. Relativity is a web-enabled discovery software aiding in the processing, review, analysis, and production of electronic documents.
This is a revolutionary application that manages terabytes of data while simultaneously allowing users to customize a database for their needs. Specifically, this application allows an unprecedented efficiency with control in the hands of the user.
Joseph Cusumano, a litigation support manager at Kasowitz Benson Torres & Friedman, says the upgrades moved more of kCura’s powerful features into litigation support’s control. "'We can quickly reallocate optical character recognition, production, and TIFFing without having to involve our IT administrators. That’s really what raised my eyebrows,'" he says in the article. With kCura devoting itself to continuous evolution offering a groundbreaking product that stands on its own, it’s clear to see while certainly being trendsetting is complimentary, it just doesn’t do it justice.
TERIS is a premiere partner of kCura with certifications in every Relativity module kCura offers. In fact, the same company that was responsible for developing the IT model for kCura Relativity designed the Relativity infrastructure for TERIS. The combination of TERIS’ Relativity Best in Service designation, along with the powerful benefits of Relativity, provide clients with more flexible workflow capabilities, making the platform stronger, faster, and even more powerful.
by Greg Behan, Esq.
A technical committee of the International Organization for Standardization (ISO) is moving forward with the development of standards for legal discovery involving electronically stored information (ESI). Previously, the committee generated international standards guidelines for the identification, collection, acquisition, and preservation of digital evidence with the goal of creating an impartial global mechanism for investigations involving digital devices and digital forensics. The ISO has created international standards for a diverse range of industries including food safety, healthcare, computers, finance, energy, automotive and service related products to name just a few. Their standards carry the weight of law in many jurisdictions and the scope and reach of the organization has helped to normalize global commerce.
The ISO committee's co-editor and U.S. representative is Eric Hibbard who is also Co-Chair of the American Bar Association’s E-Discovery & Digital Evidence Committee and CTO for Security and Privacy at Hitachi Data Systems. Hibberd’s committee elected to move forward with the development of E-Discovery standards during a meeting in France hosted by the European Telecommunications Standards Institute. Joining the United States in support of the creation of these international standards were the United Kingdom, Thailand, Belgium, Brazil, China, the Czech Republic, Mexico, Norway, the Republic of Korea, Romania, Singapore, Slovakia, Slovenia, Italy and South Africa.
There are several U.S. institutions that have provided guidelines and recommended the adoption of technical standards for the production of ESI. In the past, there has been concern that technical standards may be premature given the continual advancement in technology and the ever changing litigation software landscape including the increasingly more common use of Technology Assisted Review (TAR) workflows. Depending on the dataset and the software tools utilized, a standardized process may inadvertently confer an advantage to one party over another. Just like any other industry, if international standards are adopted some firms will need to re-tool their processes in order to comply when working across international borders.
In order to control costs, large multinational corporations are becoming increasingly involved in the discovery process and will likely require law firms and vendors adhere to protocols developed by standards organizations like the ISO. This type of standardization will indicate that their company is purchasing services from a qualified source and will create metrics against which expenditures can be measured and analyzed to determine efficacy. Non-technical judges increasingly rely on standards organizations to make decisions related to eDiscovery issues and a set of recommendations by a renown institution like the ISO will certainly carry weight for any firm or business that relies on them before the bench.
1 http://meetings.abanet.org/webupload/commupload/ST203001/relatedresources/EDDE_JOURNAL-volume4_issue2.pdf Page 14
When the world of eDiscovery was young, it made sense to charge per gigabyte, much as a laundromat charges per shirt. Although the presence of electronic data, devices, and storage were becoming increasingly prevalent in daily life, the litigation industry was a bit slow to catch on at first, and the per-gigabyte pricing model stuck around.
The Wave of the Future
These days, what used to be a half-dozen shirts dropped off at the cleaners has become an entire bushel.
According to the International Data Corporation, the total amount of worldwide digital content created in 2010 exceeded one zettabyte, the highest volume of data ever recorded in history. And yet, that number is predicted to double by the end of this year. If imagining every byte as a single grain of sand, the total data created would encompass 400 Hoover Dams.
If you can imagine sifting through even a fraction of those grains of sand for data relevant to specific litigation, it becomes clear why the old usage-based pricing models no longer make sense. The clamor from clients for more reasonable and predictable cost structures has become deafening, while legal teams are frustrated at the lack of an industry-standard alternative. Meanwhile, total litigation costs are rising everywhere, and the exorbitant (yet vital) electronic discovery costs are largely being blamed.
The world has changed, especially where technology is concerned. Remember when emails weren’t considered admissible evidence because they were too informal? Courts took a long time to recognize electronic data as valid. These days, corporate communication via emails can form the entire foundation of a case. While the courts are finally embracing many aspects of technology, one area remains stubbornly set in outdated ways: existing pricing structures for eDiscovery. Is it time to leave usage-based pricing behind? Can the idea of alternative fee arrangements (AFA) finally bring eDiscovery costs into the twenty-first century where they belong?
History of Existing Price Structure
Historically, the idea of alternative fee arrangements was limited to single-service solutions. Clients would pay one subcontractor for computer forensics and another for data mining, while hiring yet another for electronic discovery. All the services were separate, and paid for separately, according to usage. Again, when the amount of data was so much smaller, this method was completely reasonable.
Multi-service solutions started being offered to allow clients a one-stop solution for their litigation support needs. However, though the offered services themselves had changed significantly, the pricing structure never did. Despite the advantages gained to both parties by adapting a multi-service approach to eDiscovery and other technologically-based litigation support, the billing remained based on usage, not service.
At a small level, usage-based fees make sense, and are very attractive to clients. After all, you only pay for the information you harvest and the specific services used. Clients feel confident that they’re not being overbilled, and might even feel like they’re saving significantly over the more standardized prices associated with alternative fee arrangements.
For minor litigation, they may even be right. What happens, though, when the litigation isn’t minor? Litigation, by its nature, is pretty erratic. One month a firm may only need $10,000 worth of electronic discovery services; the next month, a huge and unexpected case may push them into 20 times that amount. With no predictability comes a disastrous attempt at budgeting, or more accurately, the impossibility of either maintaining or predicting said budget. Any savings that seemed worth cheering over on the usage-based model go right out the window with just one complicated lawsuit.
The high costs don’t only impact the client, either. As with any company, higher operating costs from litigation support are passed on to the client as higher fees. Yet, in the months or years when there’s a lull in the action, the same teams may be struggling to stay in business due to lack of revenue.
The level of havoc wreaked on client electronic discovery budgets and counsel operating budgets next led to a market push toward retainer-style pricing systems. Much like retaining counsel directly, an upfront fee is paid in exchange for exclusivity. This structure, though an improvement in some ways over usage-based pricing, too easily leads to client overpayment and frustration, combined with provider undercharging for actual support efforts. A better solution is needed, and soon.
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by Greg Behan, Esq.
“Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road.”
The information substructure of society—the way information is captured, shared, and communicated[i]—is evolving at an exponential rate and most institutions are not prepared to adapt to this rate of change. Realistically, who can blame them when the annual data volume generated by U.S. corporations is enough material to fill 10,000 Libraries of Congress?[ii] Just to put that statistic into perspective, the Library of Congress is the largest library in the world and contains 838 miles of bookshelves.[iii]
Generally, Moore’s Law describes how the processing power of hardware has exponentially increased every 18 months since the creation of the integrated circuit in 1958.[i] However, only recently have technologies evolved that enable us to make sense of the huge data volumes generated by this processing power without the necessity of hiring armies of human beings to manually review and categorize this information. Richard Susskind describes this phenomenon as Technology Lag, the difference between data processing and knowledge processing - the ability to make and move data vs. the ability to analyze and interpret it.[ii]
(Image Caption: The opportunity of a lifetime: meeting Stewart Brand, renown futurist, editor of The Whole Earth Catalog, and founder of the Long Now Foundation, Global Business Network, and The Well.)
The data revolution in the legal industry is barely getting started, and already the Technology Lag is rapidly shrinking. Technology has disrupted nearly every industry, making many professions obsolete (think travel agents, telephone operators, and photographic lab technicians), and lawyers are not immune to this disruption. I’m a member of Generation X and even though I owned a computer when I started my first job as an Assistant Prosecutor, I was handed a Dictaphone (yes, I know) by an older colleague to dictate motions for transcription.
After I stopped practicing criminal law, I moved to Washington, D.C. and began working on large document reviews, some with hundreds of lawyers per case. As the review technology improved, and the technicians implementing it began to unlock the functionality of the software, the giant rooms filled with lawyers coding documents began to shrink. Within a few years a review project that once needed 400 lawyers could be performed with the labor of only 50. Today, the same type of complex project requires just a handful of lawyers/Subject Matter Experts (SMEs) and a sharp technician that understands and can leverage the power of the software. At this rate of advancement, what might we expect just a few short years from now?
Technology Assisted Review (TAR) will redefine the rules of discovery, the law firm business model, and even the nature of evidence itself in ways we will be unable to predict. While this technology has been around for several years, demand for it is starting to grow and soon we will see more cases related to its use and implementation. Lawyers are wired to rely on the past for guidance in the formulation of legal arguments based on precedent. This mentality can be limiting because there are no legal insights from the past that are capable of accommodating the emergence of machine / human legal determinations. This is uncharted territory and we are likely to see the momentum for adoption oscillate between skepticism and acceptance. Ultimately, the technology will be adopted widely and the firms who get there first will have an advantage with their clients in the 21st century legal market.
So, ask yourself this – are you familiar with these terms: Probability Theory, Statistical Sampling, Overturns, and Feedback mechanisms? If not, you may be “part of the road”…
 Susskin, Richard. The End of Lawyers, Rethinking the Nature of Legal Services. Oxford: Oxford University Press, 2008. Digital print.
 Susskin, Richard. The End of Lawyers, Rethinking the Nature of Legal Services. Oxford: Oxford University Press, 2008. Digital print.
TERIS Director and ESI Consultant Alexander Lubarsky will be speaking at the upcoming California Judicial Attorneys Conference May 28-29, 2013 in Santa Clara, CA. This event serves as an annual retreat for District Court and Supreme Court Justices with their research attorneys. Mr. Lubarsky’s topic will be "Electronic Evidence: The Wave Is Coming—Ride It Or Wipe Out."
Judges and Justices of the California Supreme Court will also be presenting at the conference, as well as professors of law and other attorneys. Additional topics covered will include “Brain Scans in Criminal Cases: Possible Uses”, “Ethics for Judicial Attorneys”, and much more.
Mr. Lubarsky’s course will cover an introduction to issues in the discovery of electronically stored information (ESI) in civil litigation under California’s Electronic Discovery Act (Code Civ. Proc. Sec. 1985.8) and the admissibility of electronic evidence in civil and criminal cases.
Mr. Lubarsky is the co-founder of Community Legal Centers as has litigated hundreds of matters, from deportation defense, criminal defense, civil and
bankruptcy. He is also a member of the California State Bar Solo Section Executive Committee and the San Francisco Bar Association Judicial Selection Committee.
TERIS was the only ESI vendor selected to present to the Appellate and Supreme Courts in California.
It's no secret that the use of social media has skyrocketed. In 2012, according to Burson-Marsteller, eighty-seven percent of Fortune Global 100 companies used some form of social media. In 2009, more communications occurred via social networking sites than e-mail.
Increased use has created a plethora of information that quickly has become a highly-desired source for discovery. Gartner predicts that “[b]y the end of 2013, half of all companies will have been asked to produce material from social media websites for e-discovery.”
With respect to admissibility, social media information is treated the same as other forms of electronically-stored information. Among other factors, it must be authenticated and relevant.
Authentication of Social Media Data
Authenticating social media evidence raises particular issues; including false profiles, account hacking and “Photoshopping.” These issues may be offset by the electronic footprints inevitably left by social media users, however. Forensic examination of devices or corroboration by social media sites may provide a panoply of authenticating data points; including identifying the location of the post, the device or application from which the post was made, timestamps, user IDs, handles, usernames of re-posters, account IDs, recipients of a post and associated links. Key to this inquiry is engaging a partner who can provide the necessary forensic support.
Discoverability of Social Media Data
It is now well-established that social media data may be discoverable if it is relevant. If a user shares information publicly, e.g., via public postings or prior disclosure; it may be discoverable. On the other hand, private messages that are made on a social media site may be protected. Courts diverge on the scope and manner of disclosure.
In Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Cal. May 26, 2010), the court noted the distinction between private messages and postings and comments on a “wall”. Here, the court protected private e-mail messages made via Facebook and MySpace, because the Stored Communications Act, part of the Electronic Communications Privacy Act of 1986, applied. But the court remanded the issue of whether the user’s privacy settings made his postings and comments “public” and accordingly not shielded by the Stored Communications Act.
In EEOC v. Simply Storage Mgmt.., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010), the court pointed out that the users’ expectation of privacy in using their Facebook and MySpace accounts did not protect communications made via those sites from discovery. The court noted that the users had “already shared” the information at issue. The court ordered production of the following communications relevant to the case: “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS [social networking sites] applications for claimants . . . .”
Preparation for Discovery
With social media data on the rise, corporations and counsel should take steps to address and prepare for certain unique issues:
Act early -- users constantly update and change data as well as privacy settings.
Determine whether relevant information resides on social media sites, weighing the costs of obtaining such information.
Use discovery requests to determine all social media sites used by the opposing party and request all relevant postings and messages.
Consider the steps necessary to authenticate the requested information, including engaging a trusted partner to provide forensic support.
Engage a trusted partner who can preserve, collect, review and produce the information in a defensible manner.