ABA Techshow

E-Discovery Can Create Big Hassle for Small Cases

The proliferation of social networking sites such as Facebook and Twitter has created a tangle of ownership rights, subpoena power and even malpractice actions for botched e-discovery for lawyers and clients—even in small cases.

Attorneys in consumer-based practices such as family, personal injury and estate law must be particularly careful to advise and educate clients about how and when to preserve and purge digital information, a panel of experts advised audience members at an ABA Techshow program Friday.

One problem? “Most firms really don’t know where data resides,” said John Simek, co-founder of Sensei Enterprises, a computer forensics and information technology support company. “Although data is generally housed with a service provider, it can also be written to the authoring person’s hard drive.”

With social media, lawyers must consider who else may have received data, such as a downloaded photo from Facebook, often without the author’s (or client’s) knowledge. That data may still reside on the receiver’s hard drive and resurface at a later date.

“Twitter has every single tweet ever made,” Simek explained, a common practice among social networking sites.

And even if clients are aware of the existence and location of photos of opposing parties frolicking on the beach in Florida two weeks after a major car accident, that doesn’t guarantee they’ll be able acquire the incriminating pictures. Many social networking sites won’t produce data without authority from the account holder.

Under the Electronic Communications Privacy Act, unless a court order is granted, lawyers must rely on opposing parties to contact the social networking site, collect and produce the data, which raises questions about completeness and authenticity, the panel noted.

Lawyers can also decrease the burden of e-discovery if they narrow the issues before they request mountains of electronically stored information, said U.S. District Judge David Waxse of Kansas. “Simply because it’s a divorce case, that doesn’t mean you get all the ESI the other party has ever created.”

“If you know what you’re looking for, it will be easier to narrow down the discovery,” added Simek, who suggested lawyers often overemphasize the need to mine for metadata, which can add unnecessary time and cost, particularly in small disputes. “Often it’s the content you are dealing with,” Simek says, “and lawyers won’t have as many problems as they can contrive or think of.”

One proposed solution from the panel: “If your client is facing a divorce, they should turn off Facebook,” said U.S. District Judge James Rosenbaum of Minnesota.

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