Masters conference re e-discovery and social mediaPresentation Transcript
Social Media−E-Discovery in a Web 2.0 World For The Masters Conference Ronald Reagan Building, Washington, DC October 4, 2010
Our Vantage PointsIn-House Counsel Outside Counsel International Counsel
What Is Social Media?
What Is Social Media? Internet forums Weblogs Social blogs Microblogging Wikis Podcasts Pictures Video Ratings Social Bookmarking
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
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
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
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?
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
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
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?
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
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
The Wrong Attitude
The Right Attitude
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?
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
Is Social Media Special? Treated as ESI under Federal Rules Data management Ownership Control of use Enterprise security Public or quasi-private information broadcasts
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
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
Privacy and Social Media
Face to Facebook
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”
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
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?
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
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
Questions?“Three things in life are certain:death, taxes, and computer failures.”-Erik Heels