ELECTRONIC DISCOVERY MEETS SOCIAL MEDIA

1. ELECTRONIC DISCOVERY MEETSSOCIAL MEDIA Your Practice in Today's Digital World Louisiana State Bar Association Aug. 27, 2010 Tom O’Connor Director Gulf Coast Legal Technology Center www.gulfltc.org

2. OVERVIEW • WHAT IS IT? • WHO USES IT? • WHEN DO WE SEE IT? • PROBLEMS • CASES • TAKEAWAYS

3. 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

4. IT’S A VEGATABULL • 40% of all online time is spent on • Social Networking • Email • Games • 90% of that is socalinetwokring • Up 43% from a year ago

5. WHO ARE THESE GUYS?? the fastest growing demographic on Facebook is 35 years old and older.

6. General Social Networking Sites

7. 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

8. Blended social networking outlet • Does it have to be? • Can you have two faces? • Own your Facebook business Page • Google juice flows through

9. Microblogging • Limited by 140 characters per post • Limited info on your Twitter page about you • Can be time consuming • Need to be strategic about your posts

10. Legal Specific Networking Sites Social Networking for Lawyers by Bob Ambrogi http://tinyurl.com/dmhucs

11. Hosted by the ABA • Unique people map • Closed network • New and growing • Anyone can join

12. Networking • Public Profile • Recognition • Groups: 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 Answer • Moderated Forums: Become a moderator of your own law forum • Classifieds

13. Collaboration system for: • in-house counsel • invited outside lawyers • third party service providers • International flair..lawyers participating from over 40 countries • Claims a rapidly growing collection of content and technology resources • Basic services are free • All members are expected to contribute to the community as a whole

14. Lawyer Ratings and Rankings • Legal Guides contributed by lawyers • “You be the judge. Write a lawyer review.” • Powerful Search Engine pusher • Controversial? • Access to lawyer info must be approved by each Bar http://tinyurl.com/clzhlt http://tinyurl.com/ctuumr

15. When We Come Across It • 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 • 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.

16. 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

17. PROBLEMS • Authentication • Collection • Requests • Privacy • Privilege

18. REQUESTS • 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

19. 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

20. 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

21. PROBLEMS • 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….

23. CASES • in 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).

24. TAKEAWAYS • Tailor these ideas to your practice • A mix of both is important and necessary • Have a budget and track your results “How did yo9u hear about me” • Confer with an expert - it’s a wise spend

25. RESOURCES • Lawyers 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 ZaslowskyManatt 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 CaseEricMeyer Dilworth PaxsonLLP

26. Traditional MethodsvsOnline

27. Answer your phone!!! And take notes!!!

28. Get a CRM • Free (ZOHO) • Outlook can work • Keep track of personal information • ACT on that personal knowledge

29. 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

30. Direct mail • Send your clients a newsletter on issues facing your clients. Should be a couple pages long and timely!!! • Send postcards with personal notes.

31. Birthday and Holiday Cards

32. Writing and Speaking

33. Social Activites and Networking

34. Time to get some assistance? Hire a consultant to take care of some of these things Minimal expense with maximum results

35. Online Methods

36. NO MORE…