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Masters conference re e-discovery and social media

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  • 1. Social Media−E-Discovery in a Web 2.0 World For The Masters Conference Ronald Reagan Building, Washington, DC October 4, 2010
  • 2. Our Vantage PointsIn-House Counsel Outside Counsel International Counsel
  • 3. What Is Social Media?
  • 4. What Is Social Media? Internet forums Weblogs Social blogs Microblogging Wikis Podcasts Pictures Video Ratings Social Bookmarking
  • 5. What Is Social Media? No formal definition Evolving concept Formats: text, videos, images, audio, etc. Major characteristics:  Shared content  Interactive  Internet-based  Personal or corporate content  Informal tone
  • 6. Why Should I Care? Fourth most popular Internet activity  Nielsen study, Mar. 2009 More popular than e-mail Not just for kids and teenagers Adults-40% of 30+ use social media  Pew Internet & American Life Project Social Media & Young Adults, Feb. 2010
  • 7. Why Should I Care? Stats: Facebook  Over 500 million activeFacebookusers (50% daily users)  Over 100 million w/public information  Complete profile contains over 40 pieces of information (+ wall posts & status updates)  2/3 of comScore’s Top U.S. websites integrated into Facebook
  • 8. Why Should I Care? Personal Use  Some risk to business interests  Where is the line between personal and business use?  Disclosure of confidential business information  Unauthorized statements  Speaking on behalf of the business?
  • 9. Why Should I Care? Strong growth in business use  Internal  Customer-focused  Marketing  Regulatory & compliance (e.g., FTC)  Morale  Immediate customer feedback  Requires rapid response, protect the brand
  • 10. Intellectual Property Concerns Controlling use of company brand and marks Protecting and respecting copyrights Employees use of company IP without permission Protecting goodwill Use of competitor or 3rd party marks, likeness, website content, etc. Scope of 1st Amendment protections
  • 11. Social Media In Court Relevant Discovery obligations (preserve, collect, and produce)  In control of individual or company that generates it  Located on company or 3rd party server  Person presumed to control or have access to her own content on 3rd party site  Company control of content an employee posts?
  • 12. Social Media In Court Criminal & civil cases  Alibi  Sentencing reports  Statements against interest  Witness impeachment  Employment claims  Unfair trade or marketing practices  Witness and suspect investigations
  • 13. Social Media In Court  Jury Issues  Jury selection and research  Jury misconduct using technology on the rise: research on cases and disclosure of deliberations  As Jurors Turn to Web, Mistrials Are Popping Up, New York Times, Mar. 2009
  • 14. The Wrong Attitude
  • 15. The Right Attitude
  • 16. Where Is It? Content can be stored in another jurisdiction Stored across multiple servers/data centers In the “cloud” How do I preserve it and collect it? Who do I call?
  • 17. Can I Control It? Social media site drives its own retention and destruction schedule No practical control over 3rd party site Rights and control opportunities waived when joining many sites
  • 18. Is Social Media Special? Treated as ESI under Federal Rules Data management Ownership Control of use Enterprise security Public or quasi-private information broadcasts
  • 19. Preservation and Collection Screen shots Static images Video of site content Software that crawl’s company and 3rd party sites Keyword searching Negotiate on scope of social media discovery and form of production
  • 20. Protective Domestic Laws 4th Amendment State privacy laws Stored Communications Act (SCA) Electronic Communications Privacy Act (ECPA) Health Insurance Portability & Accountability Act (HIPAA)
  • 21. An Expectation of Privacy? Privacy preferences give way to liberal discovery rules in litigation Many rights are waived upon joining, or by default settings Information may be subject to subpoena Little to no expectation of privacy, even for minors
  • 22. Privacy and Social Media
  • 23. Privacy Concerns
  • 24. Face to Facebook
  • 25. Blocking Statutes
  • 26. Technical Challenges
  • 27. Admissibility Authentication-FRE 901(a)  Must have evidence that document is what the proponent claims it is Internet Specialties West v. ISPWest  3rdparty websites not authenticated by testimony of site visitor Need witness with some access or first-hand knowledge FRE 902-”Self-Authentication”
  • 28. Admissibility Lorraine v. Markel American Insurance Co.  counsel must be prepared to deal with the evidentiary issues associated with admissibility  Will now allow discovery for the sake of discovery
  • 29. The Social Media Weapon London High Court allowed service of a court order to an anonymous blogger over Twitter Australian court allowed service of a default judgment through Facebook 9th Circuit-e-mail service ordered  Facebook or MySpace service next?
  • 30. Is There An Easy Button? Social media retention destruction policy or guideline Implement risk reduction practices Educate clients/employees Set proactive policies (create boundaries and acceptable norms) Identify social media objectives Identify employee rights and privacy expectations Monitor
  • 31. Is There An Easy Button? Outside counsel must learn and understand emerging Web 2.0 technologies Develop expanded view of documents Engage clients, witnesses, and opposing counsel on social media e-discovery issues Understand cross border data issues and local jurisdiction’s laws that may impact the case
  • 32. Questions?“Three things in life are certain:death, taxes, and computer failures.”-Erik Heels