Social Media Discovery Hotter Than Predictive Coding?

fire isolated over black backgroundIt was a great show last week at LegalTech New York. Definitely an increase in the number and quality of attendees and it was nice to see many friends and colleagues both old and new.

Also very noticeable were the many, many vendors sporting predictive coding (aka technology assisted review) messaging in their respective booths and various forms of marketing material. In fact, one industry colleague pointed me to a recent bold prediction offered by Recommind lawyer Howard Sklar, essentially proclaiming that predictive coding will have really hit the big time when a state bar organization issues an ethics opinion stating “that failure to use predictive coding is ethically questionable, if not unethical.” Sklar goes on to predict that such an opinion will come within the next 18 months.

I don’t disagree that such a development would be a big deal. But my question is, why stop at an advisory ethics opinion? What about an actual published court opinion where a sitting appellate judge decrees, without mincing words, that legal ethics obligations require lawyers to employ predictive coding? Now that would be huge. Something, in fact, like Griffin v. State, 192 Md. App. 518, 535 (2010), which addresses another hot topic in eDiscovery:

“[I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”

Now to be fair, I must point out that Griffin v. State was reversed and remanded on other grounds (419 Md. 343 (2011)), but I would argue the overall impact from an ethics and best practices standpoint is still there.

Sklar also points out three appellate level cases with written opinions that discuss the concept of predictive coding, without any definitive rulings compelling its use, but nonetheless discussing the concept. Two of the three are even retrievable on Westlaw. I think such appellate-level published decisions are important, which is why we highlight the several thousands of published court decisions in the past three years (see here and here) that have compelled the production of, admitted into evidence, or otherwise recognized the importance of social media evidence to the case at hand. New cases are being published every day, to the point where we candidly have stopped counting due to the deluge. So by the standard set by of my esteemed fellow eDiscovery lawyer Mr. Sklar, social media discovery is a very hot field indeed.

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Filed under Case Law, eDiscovery & Compliance, Social Media Investigations

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