Tag Archives: LegalTech

LTN: Social Media Evidence Even More Important than email and “Every Litigator” Needs to Address It

legaltech-news-thumbBrent Burney, a top eDiscovery tech writer of Legaltech News, recently penned a detailed product review of X1 Social Discovery after his extensive testing of the software. (Social Media: A Different Type of E-Discovery Collection, Legaltech News, September 2016). The verdict on X1 Social Discovery is glowing, but more on that in bit. Burney also provides very remarkable general commentary on how social media and other web-based evidence is essential for every litigation matter, noting that “email does not hold a flicker of a candle to what people post, state, admit and display in social media.” In emphasizing the critical importance of social media and other web-based evidence, Burney notes that addressing this evidentiary treasure trove is essential for all types and sizes of litigation matters.

Consistent to that point, there is a clear dramatic increase in legal and compliance cases involving social media evidence. Top global law firm Gibson Dunn recently reported 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.” Undoubtedly, this is  why Burney declares that “every litigator should include (X1 Social Discovery) in their technical tool belt,” and that X1 Social Discovery is “necessary for the smallest domestic issue all the way up to the largest civil litigation matter.” Burney bases his opinion on both the critical importance of social media evidence, and his verdict on the effectiveness of X1 Social Discovery, which he lauds as featuring an interface that “is impressive and logical” and providing “the ideal method” to address social media evidence for court purposes.

From a legal commentary standpoint, two relevant implications of the LTN article stand out. First, the article represents important peer review, publication and validation of X1 Social Discovery under the Daubert Standard, which includes those factors, among others, as a framework for judges to determine whether scientific or other technical evidence is admissible in federal court.

Secondly, this article reinforces the view of numerous legal experts and key Bar Association ethics opinions, asserting that a lawyer’s duty of competence requires addressing social media evidence. New Hampshire Bar Association’s oft cited ethics opinion states 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.” The New York State Bar similarly weighed in noting that “A lawyer has a duty to understand the benefits and risks and ethical implications associated with social media, including its use as a … means to research and investigate matters.” And the America Bar Association recently published Comment [8] 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.”

The broader point in Burney’s article is that X1 Social Discovery is enabling technology that provides the requisite feasibility for law firms, consultants, and other practitioners to transition from just talking about social media discovery to establishing it as a standard practice.  With the right software, social media collections for eDiscovery matters and law enforcement investigations can be performed in a very scalable, efficient and highly accurate process. Instead of requiring hours to manually review and collect a public Facebook account, X1 Social Discovery can collect all the data in minutes into an instantly searchable and reviewable format.

So as with any form of digital investigation, feasibility (as well as professional competence) often depends on utilizing the right technology for the job.  As law firms, law enforcement, eDiscovery service providers and private investigators all work social discovery investigations into standard operating procedures, it is critical that best practices technology is incorporated to get the job done. This important LTN review is an emphatic punctuation of this necessity.

 

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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