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Electronic Discovery &Social Media
David A. ChaumetteChaumette, PLLC
[email protected] @Chaumette
Fort Bend Bar Association, May 2012
Presentation Outline
Quick summary of recent decisions and other guidelines.
Outlook for the future, including
Being proactive.
The impact of the new Rules.
Privilege protection of tomorrow.
Developing early responses.
Presentation Outline, part 2
Flying in Hawaii
Discovery for Cheapskates
The Elephant and the Spoon
Crud is Ubiquitous!
The state of litigation today …
“Discovery on Discovery May Be Better Than RealDiscovery.”
“[There] may be more advantage for therequester in the inability of the respondent toproduce discoverable data than disadvantagearising from the failure to obtain potentiallyrelevant material.”
-- “The Homesteader and the Gunslinger: Plaintiff’sCounsel in Discovery,” Robert Alan Eisenberg,January 15, 2003.
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Many companies destroy documents hoping toavoid taking responsibility for things that they
have done.
48%
30%
12% 10%
DQ/MCCA Telephone Survey, Q19September 2002
Initial Steps, before the Initial Steps
What steps could have been taken 1 month ago?
6 months before that?
18 months before that?
Unfortunately, not the most scintillating …
The Document Retention System
Setting up the Document Retention System What is a corporate record?
Who are the record custodians?
What are we teaching or telling those custodians beforeanything happens?
What do you do when people leave one job for another, eitherthrough promotion, merger, or another transition?
How much can you look at the past experience to learn from it?
The Document Retention Progam
When can you destroy something?
How long do you keep things?
How will things be categorized?
What do you do when people don’t follow thepolicies?
Once litigation starts…
It’s all about asking the right questions…
The Duty to Preserve Evidence.
Duty to preserve documents can arise from
pending, threatened, or reasonably foreseeablelitigation (Brotherton test); or
other sources (for example, contract, statute, orregulation).
Critical to analyze choice of law.
Generally, whether the duty to preserve evidence existsis a question of law.
Documenting preservation effort
Org charts, past and present.
Interview questionnaires.
Treat documents as privileged, but preparesomeone to testify about them.
Document any actual collection that occurs –think “chain of custody.”
Learn technology and vocabulary.
Use of technology and language is idiosyncratic andextremely personal.
Know how your client uses technology.
Consider opposing party’s use of technology and theInternet.
Know when to engage others (technology experts).
It’s not just instant messaging any more.
Communicating the Message, part 1
The defensibility binder.
What does it look like and why do you need it?
When do you start developing it?
Is it privileged? Or how do we keep it privileged if we want to?
Who owns the binder?
Communicating the Message, part 2
The witnesses for the process
Who will testify as to the process? Who is the backup?
How will you prepare this person? What documentation doyou need?
Do they get a copy of the defensibility binder? Or just a part.
Costs
Budgeting considerations…
This is where early case assessment, alternative feearrangements, and e-discovery can meet.
Budgeting by segment is a consideration.
It’s important to identify hidden costs and costing mechanismsof the vendors (and the outside lawyers).
How can you be sure to value the cost of the internal (non-timekeeping) employees?
How can you minimize the touches?
A cost saving tip ...
Manage production by always considering fourmajor cost considerations:
The time frameThe mediaThe peopleThe search terms
Increasingcomplexity
De la Rosa & Chaumette 19
A cost saving tip…
Recognize that this process will be – and should be –iterative. Remember the joke about the elephant and thespoon.
Your plan should be :
Focus on the main players,
Analyze what you have,
Come back for more.
Other lawyers will object – and they might be right –but it is likely to become the way things are done.
Remember that judges will probably like e-discoverybattles as much as they like other discovery fights.
Anticipating the questions…
Who is on your electronic document team?
Who is the team’s spokesperson (and the backup spokesperson)?Think testimony.
Where are things? Avoid new hunts.
What electronically stored information is “inaccessible” because of“undue burden or cost?” (And ask yourself: “do I really need all ofthis stuff?”)
What are we saying publicly?
De la Rosa & Chaumette 21
Why Should You Care?
Because 2/3 of global internet population visits socialnetworking sites
Because users spend 8 billion minutes per day on socialnetworking sites
Because social media has overtaken porn as the #1activity on the Web
Because if Facebook were a country, it would be theworld’s 3rd largest, behind China and India
Why Should You Care?
Memorialized in discoverable format
Permanent and searchable
Shared, re-posted, aggregated and spread virally
Available to hundreds of millions with a simpleclick of the mouse
Social Media as Evidence
“Breathe. Know that the Internet has no eraser.”
– Liv Strauss
Information on SM lasts, like, forever!
Most people do NOT think before they post
Twitter keeps all tweets
Facebook keeps all posts until deleted items areoverridden
You can’t control what others do with your posts andyour pictures
Social Media as Evidence
“Delete” doesn’t really mean “delete”
Computer forensics companies are making a lot ofmoney recovering “deleted” items from computers
What if someone reposts the information?
What if someone actually kept the data?
Social Media as EvidenceSocial network photos used to dispute personal injury
claims and help divorce attorneys catch cheating spouses
Magistrate offers to “friend” parties to view social
media content in camera.
Child's use of inappropriate language on Facebook after midnight
was offered as proof of lack of parental supervision.
Defendant acquitted on statutory rape charges after introducing
evidence that victim held herself out on MySpace as an 18 yr old.
Company showed wanton disregard of injunction by failing toCompany showed wanton disregard of injunction by failing to
discontinue use of infringing marks on social networking sitesdiscontinue use of infringing marks on social networking sites
Which one is real?
Getting the information
Public search - Researching Clients, Parties andWitnesses
So long as privacy and ethical considerations do not createproblems, information publicly available can be useful indiscovering personal details regarding background detailson a party or witness
User profiles may provide sources of information regardinga witness’s personal details, marital status, education,hobbies and significant life events
LinkedIn allows users to “recommend” users and provide ashort explanation of the basis for the recommendationwhich could provide a useful resource when researchingexpert witnesses
To Subpoena or not to Subpoena… For third party sites? Probably not.
Federal Stored Communications Act (SCA), 18U.S.C. § 2701 et seq. Bars sites from “producing a non-consenting subscriber's
communications even when those communications aresought pursuant to a court order or subpoena”
Crispin v. Christian Audigier, Inc.
Motion to QuashMotion to Quash
Expectation of Privacy
“You already have zero privacy. Get over it.”
– Scott G. McNealy CEO of Sun Microsystems Inc.
Privacy is not a privilege.
Protective order limiting use and exposure of theinformation
Lack of foresight as to how emerging technology will affectsociety.
What is reasonable is constantly changing.
Lastly, the free stuff!
www.ediscoverylaw.com
www.discoveryresources.org
www.edrm.net
www.fjc.gov
www.thesedonaconference.org
So, Dave, how do I look smart?
Think long term in discovery.
Pick your battles.
Document your steps.
Focus on volume reduction…
Limit preservation … or limit collection … or limit review … orlimit production.
Plan for failures.
Have contingency plans in place.
Admit errors quickly.
Involve others in the process.
IT, in house lawyers, records people, vendors.
Electronic Discovery &Social Media
David A. ChaumetteChaumette, PLLC
[email protected] @Chaumette
Fort Bend Bar Association, May 2012
