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ELECTRONIC DISCOVERY MEETS
SOCIAL MEDIAYour Practice in Today's Digital World
Louisiana State Bar AssociationAug. 27, 2010
Tom O’ConnorDirectorGulf Coast Legal Technology Centerwww.gulfltc.org
WHAT IS IT?Wikipedia defines “Social
Media” as . . .“media designed to be disseminated through social interaction, created using highly accessible and scalable publishing techniques. Social media use Internet- and Web-based technologies to transform broadcast media monologues (one to many) into social media dialogues (many to many). It supports the democratization of knowledge and information, transforming people from content consumers into content producers
IT’S A VEGATABULL
40% of all online time is spent on
Social Networking Email Games
90% of that is socali netwokring Up 43% from a year ago
• Established and profoundly
professional
• Very business-oriented
• Heavy “networking”
• Google gets into it
• Step by step set up, easy entry
• Personal and business profiles
• Participate and showcase your
expertise in the “Answers” section
of the Law & Legal category
Blended social networking outletDoes it have to be?Can you have two faces?Own your Facebook business PageGoogle juice flows through
MicrobloggingLimited by 140 characters per postLimited info on your Twitter page about youCan be time consumingNeed to be strategic about your posts
Legal Specific Networking Sites
Social Networking for Lawyers by Bob Ambrogihttp://tinyurl.com/dmhucs
Networking Public ProfileRecognitionGroups: Create a law group or join one, you are automatically a member of your law school group. Documents: Upload documents, get yourself featured on home page. Answers: Ask or AnswerModerated Forums: Become a moderator of your own law forumClassifieds
Collaboration system for: in-house counsel invited outside lawyers third party service providers
International flair..lawyers participating from over 40 countriesClaims a rapidly growing
collection of content and technology resourcesBasic services are freeAll members are expected to contribute to the community as a whole
Lawyer Ratings and RankingsLegal Guides contributed by lawyers“You be the judge. Write a lawyer review.”Powerful Search Engine pusherControversial?Access to lawyer info must be approved by each Bar
http://tinyurl.com/clzhlthttp://tinyurl.com/ctuumr
When We Come Across It
• All areas of litigation and investigation are using social media to find and vet witnesses, for subpoena and impeachment reasons
• iPhone App for background checks, which reports the usual demographic information and also includes social media activity.
• 81% of top divorce attorneys report a surge in cases using social networking evidence
• Labor and employment attorneys are aggressively using Facebook and other social media outlets
CORPORATE CONCERNS
66% worried about eDiscovery risks posed by social networks
33%: “partially prepared” to handle risks
25% not prepared at all
25% not sure if executives had any awareness of the risks
16% said total lack of awareness
33% lack “discovery response team”
13% say IT & legal “work well” together
33% say they don’t even know how they work together
As part of discovery request:• All online profiles, postings, messages
including tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries, photographs, videos, and online communications
• Refer or relate to:• the allegations set forth in the complaint• any facts or defenses raised in the
answer;• any emotion, feeling, or mental state
and/or events that caused them
REQUESTS
SUBPOENA COMPANY Employee no longer has access to responsive
information High fees Many sites use the Stored Communications Act,
18 U.S.C. § 2701 et seq., to aggressively protect the privacy of user content
SUBPOENA FRIENDS Each Facebook user has a “Wall” Many Facebook users communicate Wall-to-Wall
much as they would face-to-face. Facebook's "Wall-to-Wall" feature allows you to
see the history of Wall posts between two people
REQUESTS
REQUESTS
SPOLIATION Order for forensics exam Analyze hard drive Data remnants Requires expert
COMMERCIAL TOOLS Radian6: troll web for content, aggregate & download Sonian: hosted archiving for social media SM-ART: Social Media- Assessment, Risks, and
Techniques Applied Discovery and Sensei Enterprises
Aurix … CCF Online Kroll
Consequences of Soclai Media Harversting “ Loss of:
Privacy Trade secret protection, privilege protection
and the public proliferation of the proverbial “smoking gun”.
The privilege protection can be lost for subject matter, not only a simple email or conversation. Trade secrets can become readily ascertainable.
With social media, the personal is blurred with the professional. Emotions, pictures, videos are shared amongst friends,
who may share with friends, who may share with friends….
PROBLEMS
CASESin Crispin v. Audigier, Case No. CV 09-09509 MMM (JEMx) (May 26, 2010). The Summer Case Law Update P
Recently, in EEOC v. Simply Storage Management, a federal court permitted an employer to obtain discovery of an employee's social networking activity that, through privacy settings, the employee had made "private" and not available to the general public. That makes sense, right? I have yet to see a tweet or a Facebook status update appear on a privilege log.
Even the Supreme Court is dipping its toes into “emerging” forms of communication with the recent Quon case (OK, Quon dealt with text messages – not exactly cutting edge technology, but pretty modern for the Supremes).And one cannot forget that Australia allowed service of process via Facebook. See Hedges, Rashbaum and Losey (the other Losey) on Virtual Jurisdiction (Fios whitepaper).
TAKEAWAYSTailor these ideas to your practiceA mix of both is important and necessaryHave a budget and track your results “How did yo9u hear about me”Confer with an expert - it’s a wise spend
RESOURCESLawyers Guide to Social Media
Inside Counsel has a great article today on handling social media strategically.
Litigation: E-mails, Texts, and Tweets: Killer Evidence David Zaslowsky Manatt Phelps
http://ow.ly/2ixYK (Thank you, Rob Robinson, @complexd for this last minute link via your
own social media machine.)I will be continuing this discussion of social media and electronic discovery in a number of venues which should be archived if you are actually enjoying your summer:
How Facebook Can Make or Break Your CaseEric Meyer Dilworth Paxson LLP
Get a CRMFree (ZOHO)
Outlook can work
Keep track of personal information
ACT on that personal knowledge
Print Ads &
Yellow Pages
•Expensive•Must be repeated at least 6 times•Proper coverage for your potential clients•What directories are available in your area• Need to hire a professional to design these
Direct mailSend your clients a newsletter on issues facing your clients. Should be a couple pages long and timely!!!
Send postcards with personal notes.
Time to get some assistance?
•Hire a consultant to take care of some of these things
•Minimal expense with maximum results
NO MORE…