Tag Archives: e-discovery

New FRCP Rule 37(e) Calls Out Importance of Social Media Evidence

By John Patzakis

A new version of Federal Rule of Civil Procedure 37(e) FRCP bookgoes into effect December 1, 2015, barring an unexpected act of Congress to amend or rescind the changes. Proposed rule 37(e), features a new title: “Failure to Preserve Electronically Stored Information,” and replaces the current subpart in its entirety, providing a uniform standard to resolve a split in case law among different Judicial circuits concerning serious ESI spoliation sanctions. Rule 37(e) will be the only Federal civil rule section addressing the duty to preserve ESI and thus serves as key guidance governing eDiscovery collection and preservation efforts.

Proposed Rule 37(e) is accompanied by official Committee Advisory notes. Judges and counsel refer to these Advisory notes to provide guidance and insight concerning the intent of the laws and how they should be applied. The Advisory notes are published alongside the statute and are in fact widely seen as an extension of the FRCP. The Advisory notes for new proposed Rule 37(e) include the following key section:

Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms. It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues (emphasis added).

This reference to social media is particularly notable as it is included in very important guidance concerning overall ESI preservation requirements.  The implication of the new law is clear:  social evidence is given at least equal weight and import as other forms of ESI such as email and documents. As an aside, the Advisory notes to the 2006 Federal Rules Amendments, specifically for Rule 37(f)  state: “When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a ‘litigation hold.’”

Due in large part as a result of this mention, legal holds quickly became a core eDiscovery requirement, with an entire sub-industry spawned.  So there is no question that the Advisory notes are highly influential.

It is notable that social media evidence is already a core component of eDiscovery evidence collection efforts by most lawyers and practitioners.  Recently, the global law firm Gibson Dunn released their influential 2015 Mid-Year eDiscovery and Information Law Update. In a section dedicated to social media, the Gibson Dunn update reports that “the use of social media continues to proliferate in business and social contexts, and that its importance is increasing in litigation, the number of cases focusing on the discovery of social media continued to skyrocket in the first half of 2015.”

And as succinctly noted by The Florida Bar Association in its publication, Florida Law Journal, “Social Media Evidence: What You Can’t use Won’t Help You” (2014) Volume 88, No. 1:

“Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations– can immeasurably help their clients resolve disputes. If not properly researched, preserved, and authenticated, the best social media evidence is worthless.”


“Social networking sites have grown from a few thousand users to more than a billion. These sites have become a preferred form of electronic communication, surpassing email in 2009. As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state’s population. Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.

And we are of course seeing this explosive trend in the adoption of X1 Social Discovery ahead of new FRCP Rule 37(e). X1 Social Discovery is the undisputed leader in its field for the preservation and analysis of social media and other internet evidence. If you are not one of the several thousand eDiscovery, legal, and digital investigation professionals who have enthusiastically incorporated X1 Social Discovery into your standard preservation protocols, new FRCP 37(e) should be your final call to action.

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Filed under Case Law, eDiscovery, Social Media Investigations

Amazon Re:Invent – With the Cloud, Avoid Mistakes of the Past

Last week, I had the opportunity to attend the Amazon Re:Invent conference in Las Vegas. Over 13,000 people took over the Palazzo for deep dive technical sessions to learn how to harness the power of Amazon Web Services (AWS). reinventThis show had a much different energy than other enterprise software conferences, such as VMworld.  Whereas most conferences feature a great deal of selling and marketing by the host, Amazon Re:Invent was truly more of a training show. Cloud architects spent a lot of time in technical bootcamps learning how AWS works and getting certified as administrators.

That is not to say that there was no selling or marketing going on; the exhibition hall featured myriad vendors that augment or assist with AWS deployments and solutions. The focus on the deep technical details, though, does point out the fact that we are still in the very early days of the cloud. Most of the focus of the keynotes was about getting compute workloads to the cloud – there was not a lot of mention of moving actual data to the cloud, even though that is certainly beginning to happen.  But, that is how the evolution goes. IT departments need to be comfortable moving workloads to the cloud as they begin to leverage the cloud. Building this foundation is also important to Amazon – the goal would be for many companies to completely outsource the IT data center.

It is important, however, to proactive plan for information management as more workloads and, importantly, data move to the cloud.  As the internet first emerged, companies dove into new technologies like email and network file shares only to create eDiscovery nightmares and make it virtually impossible to find information within digital landfills. It is key to learn from those mistakes rather than to repeat them when leveraging cloud-based technologies. In order to ensure both that end-users are happy with search experiences on data in the cloud and that Legal can do what they need to do from an eDiscovery standpoint. This means providing business workers with unified access to email, files, and SharePoint information regardless of where the data lives. It also means giving Legal teams fast search queries and collections. But, Cloud search is slow, as indexes live far from the information. This results in frustrated workers and Legal teams afraid that eDiscovery cannot be completed in time.

If a customer wanted to speed up search, it would have to essentially attach an appliance to a hot-air balloon and send it up to the Cloud provider so that the customer’s index could live on that appliance (or farm of appliances) in the Cloud providers data center, physically near the data. There are many reasons, however, that a Cloud provider would not allow a customer to do that:

  • Long install process
  • Challenging Pre-requisites
  • 3rd party installation concerns
  • Physical access
  • Specific hardware requirements
  • They only scale vertically

The solution to a faster search is a cloud-deployable search application, such as X1 Rapid Discovery. This creates a win-win for Cloud providers and customers alike. As enterprises move more and more information to the Cloud, it will be important to think about workers’ experiences with Cloud systems – and search is one of those user experiences that, if it is a bad one, can really negatively affect a project and cause user revolt. eDiscovery is also a major concern – I’ve worked with organizations that moved data to the cloud before planning how they would handle eDiscovery. That left Legal teams to clean up messes, or more realistically, just deal with the messes. By thinking about these issues before moving data to the cloud, it is possible to avoid these painful occurrences and leverage the cloud without headaches. At X1, we look forward to working closely with Amazon to help customers have the search and eDiscovery solutions they need as more and more data goes to AWS.

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Filed under Cloud Data, eDiscovery & Compliance, Enterprise eDiscovery, Enterprise Search, Hybrid Search, Information Access, Information Governance, Information Management

The Time Has Come to Approach Search Differently

Anyone in the search / eDiscovery business lives and breathes search – we think about all day, every day because it is our livelihood.  At X1, we have many customers making real progress with enterprise search, so there can be the perception that organizations have learned to address the very real challenge of helping employees find information.  Thus, it can be surprising to run into research that shows just how bad the traditional approach to enterprise search is.

I came across the “Enterprise Search and Findability Survey 2014” on the Findwise website.  It is very interesting reading and really confirms that a new approach to enterprise search is needed.  Some of the key points, from my perspective, are;

  • Almost half of the survey respondents in large organizations (1,000 employees or more) find it difficult or very difficult to find information.
  • Almost two-thirds of respondents are either dissatisfied or very dissatisfied with their existing search applications.
  • Almost two-thirds of respondents believe it is very important to improve the ability to find the right information.

Simply put, traditional enterprise search did not work.  Too many employees complain about not being able to find what they are looking for.  The search solutions deployed over the last 15 years focused on IT requirements rather than end-user requirements.  These tools required end-users to tag and rate their search results, something end-users have neither the time nor the emotional investment to do.  This very point is something that Marcus Stimler, CTO of Capgemini UI, points out on the webinar we did earlier this month – the reliance of traditional search tools on end-users to tag information leads to a lack of findability.  This survey just confirms that fact.

It is not all doom and gloom, however, as many X1 customers know.  There is a better way to approach enterprise search and it begins with the end-user.  In today’s business world, end-users know what they want.  They demand good experiences with technology.   A web page with links to search results will not cut it in the enterprise.  Users need a single-pane-of-glass view to all of their information – email, files, SharePoint, archives like Symantec Enterprise Vault, and other enterprise repositories that users might access.   X1 Search 8 provides just that – a user-friendly interface to all information that lets workers use their brains to find what they are looking for.

Beyond the desktop, X1 Rapid Discovery indexes other sources of content – either on-premise or in the Cloud – and makes the information available alongside a user’s local content.  Perhaps the beauty of this approach lies mostly with its simplicity.  Workers are happy because they can find information.  IT is surprisingly happy because they have a search tool that is easily deployable, as opposed to the traditional complex science project.  This overall happiness is a result of a new approach to enterprise search starting with end-user requirements and extending outward.  It is a subtle difference, but a meaningful one that will drive the results of future findability surveys to a new level.

For more on our perspectives on why enterprise search initiatives often fail, while X1 is invariably successful, please download this short treatise. This was inspired by direct feedback from many successful X1 install sites.  In a nutshell, X1 addresses users’ personalized requirements for business productivity search.


Click image to enlarge

A key mistake is to take big data or web search solutions and apply them to the very different use case of business productivity search. The matrix displayed here illustrates the key differences between these use cases.

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Filed under Business Productivity Search, Enterprise Search