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Social Media & eDiscovery: The Water Is Rising

by Joseph Raczynski

Lawyers are mired the immensity of eDiscovery materials.  Enter into the quagmire social media, which in part encompasses Facebook, Twitter, YouTube, and LinkedIn creating a massive flood of discoverable data.  At LegalTech Michael E. Lackey, Jr., Partner at Mayer Brown, Jack Halprin VP of eDiscovery and Compliance at Autonomy, and Honorable David J. Waxse of the US District Court District of Kansas dive into various topics surrounding social media and eDiscovery.  Some of the issues they explored included; if social media is discoverable, how to handle it, and the challenges of social media.

 

Social media can be discoverable.  According to Michael Lackey, the Federal Rules of Civil Procedure (FRCP) defines a document as “any designated documents or electronically stored information…”.  Therefore Social Media Sites (SMS) can be considered discoverable if relevant and within that definition.  One important point that the Judge mentioned was that “lawyers are treating social media differently than normal discovery, which is wrong.”

Since 75% of the Fortune 100 companies are using social media and the Library of Congress is recording every tweet, the panel examined how to handle the data.  Firms are taking one of three tactics: Block, Punt or Tackle.

 

Block: The firm prevents all access for employees; however, typically employees find work-arounds.  In addition, most firms are actually using social media so that makes the policy cumbersome.

Punt: Other firms are actually doing little to nothing to regulate.  This will leave the organization open to risk.

Tackle: Increasingly firms recognize a need to add social media to corporate information and governance. These groups realize social media is here to stay, that data is discoverable, and see the negative effects of not having a policy.

Technologists and attorneys must deal with the challenges of social media itself.  They have to consider the complexity, massive volume, informality of the conversation, anonymity of users, and lastly the transient and dynamic nature of the medium.  With respect to the informal and dynamic nature mentioned, the panel pointed out that words can be interpreted in multiple ways given variances in culture, language and age.  They gave an example that the word “dog” could be interpreted: as an animal, a negative connotation, e.g. that stock is a dog, or vernacular, “He’s my dawg”.  Multiple meanings complicated this process.

Technology is the solution in dealing with the challenges of properly understanding and organizing this discovery.  Judge Waxse stated, “Lawyers need to be convinced that technology has to be used now.”  The sheer challenge of volume, web content, conversational text, and slang necessitates highly scalable algorithmic technologies.

 

These technology tools should be:

  • Language independent
  • Have the ability to dynamically understand slang and abbreviations
  • Scale to manage ever growing volumes of data
  • Able to cull through all media including audio and video

Ultimately social media can be discoverable.  Law firms must take an active role in creating an information governance plan thus becoming proactive in addressing any possible issues that could arise.  Lastly, technology should be utilized to help unearth and understand the volumes of information that are now within the realm of discoverable.

 
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