by John Patzakis
Last week we featured guest blogger Mark Lanterman, Chief Technology Officer of Computer Forensics Services, Inc., who discussed how he performed innovative and cutting-edge social media investigations. The key takeaway is that social media evidence is very often publically available, opening up a whole new world in terms of litigation tactics. Imagine if you could have extensive, instantaneous and legal access to the Plaintiffs’ file cabinet and hard drive at the outset of every case? Well, that is more or less the situation with publically available social media evidence, which can be quite extensive.
Social media discovery efforts can clearly make the difference in, or at least greatly assist your clients’ case, especially if one moves quickly and proactively at the outset of the litigation, or even a claim at the pre-litigation stage. This is why Lanterman and his team often act proactively in their social media investigation and collection efforts, resulting in game-changes results for their clients.
And this is no longer lost on legal experts and the likes of the American Bar Association and State Bar Associations who draft ethics rules governing attorney’s general duty of competence. The New Hampshire Bar Association recently published Opinion 2012-13/05 providing that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” And the ABA recently published Comment  to Model Rule 1.1, which provides that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” (See also: California Proposed Formal Opinion Interim No. 11-0004, “Attorneys who handle litigation may not simply ignore the potential impact of evidentiary information existing in electronic form.”)
In this context, Lanterman’s compelling case study is something that every litigator and eDiscovery professional must heed. Lanterman’s assessment that social media evidence is relevant and important in over 70 percent of the cases he handles is consistent with our tracking of case law. It is also consistent with our discussions with many of our other service provider partners who use X1 Social Discovery on a daily basis, on behalf of their law firm in insurance company clients. The smart practitioners who understand this and embrace social media and website discovery are getting ahead by providing their clients a very powerful and effective service. In some cases, they are single handedly winning cases for their clients.
Earlier this month my colleague Barry Murphy wrote about the 80/20 rule when it comes to social discovery. Among the 20 percent you have eDiscovery professionals like Mark Lanterman who see social media evidence as a huge tactical advantage for their clients resulting in a rapidly expanding practice and gained credibility with his clients. The 80 percent consist of firms that have a handful of copies of X1 in their toolkit and employ them a few times a month in response to being specifically told to do so by their law firm clients. This is surprising as eDiscovery consultants are technical experts, who by definition are supposed to be ahead of the curve or at least abreast with developments in the field. They certainly should not be laggards.
But the 80/20 rule doesn’t apply just to eDiscovery service providers, we see some very savvy attorneys who utilize social media evidence in a highly strategic fashion. In fact, in some cases we see the attorneys ahead of eDiscovery service providers on this issue. There is one particular story that stands out from a big firm litigator, lamenting that one eDiscovery service provider he spoke with included floppy disks on their ESI preservation checklist, but not social media. And with social media discovery now essentially mandated as a matter of professional competence and ethics, a serious eDiscovery practitioner or attorney does not want to be on the wrong side of the 80/20 rule.