Category Archives: Best Practices

Top eDiscovery Trends for 2012: Tough to Find a List without Social Media

The buzz around the eDiscovery of social media continues unabated in 2012, and for good reason. I challenged the team here at X1 Discovery to identify a numerical “2012 top trends in eDiscovery” list such as this one that did not include social media. Overall we identified 12 such projection lists from established vendors. This post from The eDiscovery Daily blog has a good compilation and links to 10 of those 12.  We identified only one list (from Applied Discovery) that did not mention social media at all as a key trend for 2012 (we didn’t count CaseCentral’s 2012 entry as they wisely foretold the rise of social media eDiscovery a year earlier in their 2011 predictions list).

In addition to these lists of prognostication, which are fun reads, attorneys, consultants and other scribes generated a wealth of content in 2011  on social media and eDiscovery. It seems most of the discussion emphasized the need for corporate social media policies, procedures and readiness plans. Those are important first steps, but what we have sought to achieve on this blog is to outline actual solutions in terms of technical, legal and investigation techniques. For example, we identified over 20 various metadata fields unique to Facebook items and a similar set for Twitter. We instructed how to properly follow jurors and witnesses on Twitter without generating indirect communications that would violate attorney ethics rules. And we analyzed up to date case law concerning social media evidence.

But policies and procedures are important and for that we recommend compliancebuilding.com published by attorney Doug Cornelius. This site has an excellent and comprehensive collection of social media policies from a variety of industries, types of companies (public or private), industry and approach to social media (proactive, prohibitive or neutral). There are well over 200 example policies and forms from many Fortune 500 companies, law firms and non-profit organizations, including the Association of Corporate Counsel.

As far as our approach, in 2012 will continue to report on key case law and other legal developments regarding the cloud and social media. In the next few weeks, look for more metadata analysis, case law and the intricacies of public Facebook search. Thank you for supporting this blog in 2011  — more great things are to come in 2012!

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Can Lawyers Be Disqualified by Merely Viewing a Linkedin Profile? The Implications of Indirect Social Media Communications and Legal Ethics Rules

With attorneys and their hired consultants routinely collecting social media evidence for investigation and eDiscovery purposes, it is important to be aware that such activity can generate various direct and indirect communications to the subject account owners.  Sending a Facebook “friend” or a LinkedIn “connect” request are obvious examples, but there are also less overt means of social media communications. For instance, if a hypothetical law firm named Smith & Wesson were to merely follow a witness on Twitter, the service will automatically email the witness with a notification that Smith & Wesson is now following her. Additionally, it is all too easy when viewing a Facebook page to inadvertently “like” an item or accidentally send a friend request through a single mouse click.  And if you simply view another’s Linkedin profile while logged into your own account, that person will often be notified that you viewed his or her profile page.  Ethical Implication

For lawyers and their hired consultants and investigators, all this can be very problematic considering legal ethics rules that strictly regulate communications with represented parties and even jurors connected to a case. Several local and state bar associations have issued legal ethics opinions discussing this issue specific to collecting social media evidence. On December 6, X1 Discovery hosted a live webinar to delve deeper into this topic with the esteemed Ralph Losey of Jackson Lewis as the featured speaker. Ralph is the lead eDiscovery partner at Jackson Lewis and the author of “The eDiscovery Team,” considered by many to be the best legal eDiscovery blog on the planet. You can register for the recorded version of this webinar at this link here. (One hour of ethics CLE credit will be available to California attorneys).

From our perspective, this critical concern involving indirect social media communications and legal ethics underscores the importance of employing best practices technology to search and collect social media evidence for investigative and eDiscovery purposes.  Collecting evidence in a manner that prevents, or at minimum, does not require that attorneys and their proxies directly or indirectly communicate with the subjects from whom they are collecting social media evidence is a core requirement for solutions that truly address investigative and eDiscovery requirements for social media. If user credentials to the social media account have been properly obtained, that is obviously ideal. However, in many instances lawyers must resort to searching and collecting publicly available information. In such situations, it is crucial that the law firm and/or its hired experts conduct such collections in the proper manner.

For instance, X1 Social Discovery software features public Facebook capture that can search and collect publicly available Facebook pages without directly or indirectly notifying the account holder. This is critical functionality for eDiscovery preservation. Additionally, X1 Social Discovery accesses and displays Facebook pages in read-only mode, preventing metadata alternation, inadvertent friend requests or “like” tagging through a simple slip of the mouse. X1 Social Discovery includes other features concerning Twitter and Linkedin that also prevent indirect communications while effectively collecting data from those sites. We will be highlighting those features in the next few weeks, but in the meantime, we hope you enjoy our webinar.

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