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

OVERVIEW

WHAT IS IT?WHO USES IT?WHEN DO WE SEE IT?PROBLEMSCASESTAKEAWAYS

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

the fastest growing demographic on Facebook is 35 years old and older.

WHO ARE THESE GUYS??

General Social Networking Sites

• 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

Hosted by the ABA

Unique people map

Closed network

New and growing

Anyone can join

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

PROBLEMS

AuthenticationCollection RequestsPrivacyPrivilege

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

http://www.motivatedphotos.com/?id=19647

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

Traditional Methodsvs

Online

Answer your phone!!!

And take notes!!!

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.

Birthday and Holiday Cards

Writing and Speaking

Social Activites and Networking

Time to get some assistance?

•Hire a consultant to take care of some of these things

•Minimal expense with maximum results

Online Methods

NO MORE…