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eDiscovery Trends: Welcome to LegalTech West Coast 2012!
 

Today is the start of LegalTech® West Coast 2012 (LTWC) and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next two days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the Los Angeles area, come check out the show – there are a number of sessions (both paid and free) available and 69 exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which just announced today release of Version 11 of our linear review application, OnDemand®, and will be exhibiting at booth #216 along with our partners, First Digital Solutions.  Come by and say hi!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 19 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 AM – 12:00 PM:

A "Stormy" Subject…Exploring Cloud-Based eDiscovery

Can your organization better manage costs and increase control over discovery by bringing eDiscovery tools in-house or in-firm? What are the advantages and drawbacks of eDiscovery in the cloud? In this session, the panel will:

  • Explore insourcing v. outsourcing market trends
  • Discuss the pros and cons inherent in cloud/SaaS v. on premises e-discovery software solutions
  • Examine challenges when collecting and preserving discoverable data stored in the cloud

Speakers are: Scott Sachs, eDiscovery Attorney, Atkinson Andelson and Adam Sand, Associate General Counsel, Ancestry.com.  Moderator: Wayne Wong, Managing Consultant, Kroll Ontrack.

1:30 – 3:00 PM:

Under Fire: Defending and Challenging Technology-Assisted Review

Intelligent Review? Predictive Coding? Smart review? Whatever you call it, amidst growing data volumes and dwindling resources, traditional linear document review is quickly going the way of the dinosaur. In this session, the panel will:

  • Explore the "what", "why", and "how" behind  technology-assisted review
  • Discuss cutting-edge opinions from the bench
  • Provide you with tips to help overcome your organization's objections to using intelligent review technology

Speakers are: Tom Werner, Associate, Irell & Manella, LLP; Jeffrey Fowler, Partner, O'Melveny & Myers, LLP and Pallab Chakraborty, Director of eDiscovery, Oracle.  Moderator: Andrea Gibson, Product Director, Kroll Ontrack.

3:30 – 5:00 PM:

Exploring Hot eDiscovery Trends: FRCP Amendments, Social Media, and Emerging Case Law

eDiscovery evolves at the speed of light. If your organization is standing still, you are losing ground. In this session, the panel will:

  • Explore how eDiscovery evolved in 2011, with a look into how it will continue to change in the remainder of 2012
  • Analyze whether potential amendments to the Federal Rules of Civil Procedure are even possible, and what the amendments might entail discuss "hot" trends impacting eDiscovery such as social media.

Panelists are: Ron S. Best, EDD Staff Attorney & Director, Litigation Systems, Munger, Tolles & Olson, LLP and Eric Chan, Associate, O'Melveny & Myers, LLP.  Moderator: Joel Vogel, Vice President, Discovery Products and Services, Kroll Ontrack.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Twitter Seeks to Succeed Where Defendant Failed
 

Yesterday, we discussed a case where the court denied a criminal defendant’s attempt to quash a subpoena of his Twitter account information.  Now it’s Twitter’s turn to file a motion to quash the court’s order.  Filed this past Monday (May 7), the motion seeks to quash the order based on the grounds that the order imposes an undue burden on Twitter for three reasons including the reason that it forces them to “violate federal law”.

In People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.), the social network filed to quash a subpoena that ordered it to turn over “any and all user information” for Twitter-user Malcolm Harris between Sept. 15 and Dec. 31, 2011.

Twitter’s counsel argued that the order violates the Fourth Amendment, which guards citizens against unreasonable search and seizures, and would force the company to violate federal law.

Twitter also stated that the order does not comply with the Uniform Act, a stance the information network conveyed to Assistant District Attorney Lee Langston in March. “Pursuant to the Uniform Act, a criminal litigant cannot compel an appearance by, or production of documents from, a California resident without presenting the appropriate certification to the California court, scheduling a hearing and obtaining a California subpoena for production,” Twitter’s legal team said in the email response.

In its motion, the company even argued that, based on Twitter’s terms of service around content ownership (Twitter users own their content), Harris has legal standing to challenge the original subpoena; the court previously ruled that he did not.

“This is a big deal. Law enforcement agencies — both the federal government and state and city entities — are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet,” ACLU senior staff attorney Aden Fine said in a statement.

“[The Internet] is, in some ways, the ultimate embodiment of the First Amendment. But one potential problem for free speech on the Internet is that, for almost all of us, we need to rely on Internet companies. And while the government is bound by the First Amendment, the First Amendment may not always prevent private companies from restricting our free speech rights,” Fine said. “That is why it is so important that the public — and other companies — know when a company actually stands up for its users’ rights. Twitter did so here, and Twitter should be applauded for that.”

So, what do you think?  Does Twitter make some valid arguments and will they succeed where the defendant failed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: VentureBeat.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Court Denies Criminal Defendant’s Attempt to Quash Twitter Subpoena
 

In People v. Harris, 2011NY080152 (N.Y. Crim. Ct. Apr. 20, 2012), Criminal Court Judge Matthew A. Sciarrino, Jr. ruled that the defendant lacked standing to move to quash the prosecution’s subpoena served upon Twitter, a third-party in the case, for records of the defendant’s Twitter account. The defendant was a protester arrested during a march on the Brooklyn Bridge as part of the Occupy Wall Street movement, and in prosecuting the case, the prosecution sought his Twitter records for the time period relevant to the defendant’s involvement in the march.

In denying the defendant’s motion to quash, Judge Sciarrino analogized a subpoena issued to a third-party online social networking service like Twitter to one issued against a bank for a bank customer’s account information. The judge noted that in such bank cases a customer has “no proprietary or possessory interests” in his bank records, as they are the business records of the bank. Similarly, here, when the defendant signed up for Twitter, he agreed to certain terms, including a license that he granted to Twitter to “use, display and distribute” his Tweets. “Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his,” and therefore he had no proprietary interest in the Tweets.

Judge Sciarrino also acknowledged that although the defendant’s belief that he had a privacy interest in his own Tweets was “understandable,” it was “without merit.” The court pointed out that the “very nature and purpose” of Twitter is to help its users share information instantaneously with the world. Although a user may believe the Fourth Amendment should provide him online the same protection he would receive in his physical home, he is mistaken: Twitter users "may think that the same 'home' principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter. At the same time the user is also granting a license for Twitter to distribute that information to anyone, any way and for any reason it chooses."

Judge Sciarrino also denied the defendant’s motion to intervene in proceedings to quash the prosecution’s subpoena. It also found that the court is “compelled to evaluate the subpoena under federal laws governing internet communications,” that is, the Stored Communications Act; as such, the subpoena was proper because the defendant had a required hearing and notice, the information sought was relevant and material to the case, and the subpoena was not overly broad in its request.

So, what do you think?  Did the judge make the right call or should the defendant have been able to quash the subpoena?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Social Tech eDiscovery: Twitter Law Enforcement Policies Revisited
 

Back in January, we revisited Facebook’s Law Enforcement policies and found that they had changed quite a bit from the from the post we published back in September 2010 regarding those policies.

Private Information within Twitter

As most information in Twitter is publicly shared with everyone, private information kept within Twitter is limited.  From their Privacy Policy page, examples of information that is not public includes:

  • Email address;
  • Password;
  • Cell phone or address book (to enable Twitter to help you find Twitter users you know)
  • Location information (to track your location where you’re “tweeting” from); and
  • Log data (IP address, browser type, the referring domain, pages visited, your mobile carrier, device and application IDs, and search terms).

You can also set “Tweet privacy” so that only certain people will receive your “tweets” or send private messages through the direct message syntax in Twitter.  Sometimes, information meant to be private messages to one individual can be inadvertently published to all if you’re not careful – as former congressman Anthony Weiner found out (remember him?).  You can also now add photos to tweets directly in Twitter, which would be private if the tweets are private themselves (this does not apply to photos referenced in tweets stored on third party image providers like Flickr, Twitpic or yFrog).

Requesting Private Information from Twitter

If you’re considering requesting provide information from Twitter for litigation purposes, here is what you need to know (from the Guidelines for Law Enforcement page on the Twitter site):

  • Data Retention Information: Twitter doesn’t get very specific on its retention policies other than to say that it “retains different types of information for different time periods” and that “some information may only be stored for a very brief period of time”.  The Privacy Policy page does note that log data may be retained for up to 18 months.
  • Private Information Requires a Subpoena or Court Order: Non-public information about Twitter users is not released except “as lawfully required by appropriate legal process such as a subpoena, court order, or other valid legal process”.  Twitter notes that they don’t “require email verification or identity authentication”, so the information may not be valid for fake or anonymous profiles.
  • Emergency Requests for Information: Twitter evaluates these on a case-by-case basis, but will usually provide the information if there is “a good faith belief that there is an emergency involving the death or serious physical injury to a person”, assuming they have it.  Emergency requests can be emailed to  lawenforcement@twitter.com.  Twitter notes that only email from law enforcement domains will be accepted and all others will be disregarded.
  • Requests from Non-U.S. Law Enforcement: Twitter will honor requests for user information from foreign law enforcement agencies if they are requested through a U.S. court.
  • Notifying Users of Information Requests: Twitter will notify users of requests for their information prior to disclosure unless they’re prohibited from doing so by statute or court order.
  • Information to Be Included in Requests: Requests must include the username and URL of the Twitter profile in question, details about the specific information being requested and its relationship to the investigation and a valid email address for them to acknowledge receipt of the legal request.
  • Methods for Requesting Information: Twitter only accepts legal process from law enforcement agencies delivered by mail or fax.  That’s a very 1970s restriction for an organization whose business it is to provide 21st century technology to its customers.

Now you know how to request private user information, provided you’re a law enforcement organization or have a subpoena or court order to serve them with.

So, what do you think?  Have you needed to request information from Twitter for litigation purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Google “Vaults” Into eDiscovery Preservation
 

Yesterday, Google announced the launch of an eDiscovery tool named Vault for its Google Apps business customers.  Google Apps Vault is an add-on which preserves electronically stored information (ESI), including Gmail, chats and other correspondence to help users meet preservation obligations for litigation, regulation and compliance laws.

Jack Halprin, Head of eDiscovery at Google posted the following to the Google blog yesterday:

“Today we’re announcing the availability of Google Apps Vault (Vault) for Google Apps for Business customers. Vault is an easy-to-use and cost-effective solution for managing information critical to your business and preserving important data. It can reduce the costs of litigation, regulatory investigation and compliance actions.

Businesses of all sizes need to be prepared for the unexpected. In today’s environment, using Vault to manage, archive and preserve your data can help protect your business. Litigation costs can really take a toll on a business when minor lawsuits can run up to many thousands of dollars, and larger lawsuits can cost even more. Significant litigation costs come from having to search and find relevant data, which is also known as electronic discovery (eDiscovery).

E-discovery can be part of virtually any litigation and requires you to search, find and preserve your electronic information such as email. Vault helps protect your business with easy-to-use search so you can quickly find and preserve data to respond to unexpected customer claims, lawsuits or investigations. With an instant-on functionality and availability of your data a few clicks away, Vault provides access to all of your Gmail and on-the-record chats and can provide significant savings to your business over the traditional costs of litigation and eDiscovery.

Additionally, Vault gives Google Apps customers the extended management and information governance capabilities to proactively archive, retain and preserve Gmail and on-the-record chats. With the ability to search and manage data based on terms, dates, senders, recipients and labels, Vault helps you find the information you need, when you need it. Vault gives management, IT, legal and compliance users a systemized, repeatable and defensible platform that will reduce the costs and risks of doing business. With just a few clicks, the business can access a service designed for security and providing auditable access to critical information.

Vault is built on the same modern, 100% web-based architecture as Google Apps. Unlike traditional solutions, it does not require a complex and costly IT environment, and can be deployed in a matter of minutes. Vault brings the security, ease-of-use and reliability of Google Apps to information governance. It can help meet the sophisticated requirements of large organizations and makes these advanced capabilities available to business of all sizes.”

Vault is available to Google Apps customers for $5 per user per month.

So, what do you think?  Do you think that Google has the financial resources to make a splash with Vault?  Just kidding.  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Three Years Later, “Deleted” Facebook Photos Still Online
 

So, that’s why they call it “Facebook”.  Because the “faces” never leave!  Ba-dum-bah!  Hey, I’m in town all week!

Thanks to the Technologist for this article, by way of Ars Technica.  If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Facebook is still trying to provide timely deletion of photos from its servers nearly three years after Ars Technica first raised the issue. Admitting that its older systems for storing uploaded content "did not always delete images from content delivery networks in a reasonable period of time even though they were immediately removed from the site," Facebook recently stated that it's currently completing a newer system that will effectively delete photos within 45 days of the removal request. Until then, photos that users thought they "deleted" from the social network months or even years ago remain accessible via direct link.

Facebook has addressed this issue in its Statement of Rights and Responsibilities, as follows: “when you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).”

Not available to others unless they know the direct link to that content, apparently.

As author (from Ars Technica) Jacqui Cheng notes, “There were plenty of stories in between as well, and panicked Facebook users continue to e-mail me, asking if we have heard of any new way to ensure that their deleted photos are, well, deleted. For example, one reader linked me to a photo that a friend of his had posted of his toddler crawling naked on the lawn. He asked his friend to take it down for obvious reasons, and so the friend did—in May of 2008. As of this writing in 2012, I have personally confirmed that the photo is still online, as are several others that readers linked me to that were deleted at various points in 2009 and 2010.”  However, she noted that Facebook did delete her pictures after she did a story in 2010.

Needless to say, as discovery requests for Facebook content continue to increase (such as cases here, here, here, here and here illustrate), this could be discoverable ESI as long as that information is out there.  For attorneys that are contemplating requesting data from Facebook, it may be important to familiarize themselves with Facebook’s Law Enforcement page on how to request that information.  Apparently, just because the opposing party can no longer access that information doesn’t mean it’s not still available.

So, what do you think?  Are you surprised at how Facebook has been handling deletions?  Are you worried that some of your deleted data might still be out there?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Plaintiff Not Compelled To Turn Over Facebook Login Information
 

In Davids v. Novartis Pharm. Corp., No. CV06-0431, (E.D.N.Y. February 24, 2012), the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

Plaintiff claimed ongoing suffering from osteonecrosis of the jaw (a severe bone disease that affects the maxilla and the mandible) against the defendant. Defendant served Plaintiff with its Second Set of Requests for Production of Documents, which requested Plaintiff’s log-in information to all of her social-networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.  In responding to the request, the Plaintiff only produced materials that were available to all Facebook users — not items hidden through Facebook’s privacy settings — claiming that the request was overbroad and a fishing expedition. As a result, the Defendant filed a motion to compel the Plaintiff to turn over her login information, including login for Facebook.

Why did the Defendant request the additional access?  As noted in the transcript:

“Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition.”

In the process of determining whether the Defendant could compel such discovery, Magistrate Judge William Wall first noted that “[n]o cases in the Second Circuit or the Eastern District of New York have directly addressed this issue”.  The Defendant based its argument on two cases where access to social media information was granted: Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) and Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010).  In both cases, “publically available content on the individual plaintiffs’ public Facebook profiles provided sufficient relevant information for the courts to infer that further discovery was necessary”; however, as the court noted in this case, “no such evidence exists”.  Therefore, the court ruled as follows:

“Defendant's argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff's account.”

As a result, the court denied the defendant’s motion to compel.

So, what do you think?  Was the lack of publically available content sufficient justification for not granting the motion to compel?  Or should this case have been handled in the same manner as Largent and Romano?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Social Tech eDiscovery: Facebook Law Enforcement Policies Revisited

One of the very first posts we published on this blog, over 16 months ago, was a post regarding Facebook’s Subpoena Policy, describing and providing a link to Facebook’s Law Enforcement page to request information from Facebook.  With numerous cases involving discovery of information on Facebook, (including this one, this one, this one, this one, this one and this one – all just in the past year), it seems appropriate to revisit this page to see if anything has changed.

The first thing that has changed is the link itself.  The old link we published 16 months ago no longer takes you to that page – it defaults to the general Facebook help page.  So, I had to “go hunting” for the new location for the law enforcement page.  It took a few tries, but I did finally find it here.  If you prefer your Facebook Law Enforcement information in downloadable document form, the link to the PDF is here.

The page has a lot more information than the old page.  Sections include:

  • US Legal Process Requirements: Notes that Facebook discloses account records solely in accordance with their terms of service and applicable law, including the federal Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712, which requires a valid subpoena, court order or search warrant to compel disclosure of Facebook content.
  • International Legal Process Requirements: A Mutual Legal Assistance Treaty request or letter rogatory may be required to compel the disclosure of the contents of an account.  More information found here.
  • Account Preservation: Link to form to request preservation of account records for up to 90 days pending receipt of formal legal requests.
  • Emergency Requests: Email address for a law enforcement official to obtain an emergency request form in cases “involving imminent harm”.
  • Child Safety Matters: What to do when requests relate to child exploitation or safety concerns.
  • Data Retention and Availability: Reiteration that Facebook does “not retain data for law enforcement purposes unless we receive a valid preservation request before a user has deleted that content from our service”, with links to 1) how a Facebook user can request their account to be permanently deleted (with no recovery), 2) Facebook’s Statement of Rights and Responsibilities and 3) Facebook’s Data Use Policy.
  • Form of Requests: Information required with requests for information, including 1) name of the issuing authority, badge/ID number of responsible agent, email address from a law-enforcement domain, and direct contact phone number; 2) email address, user ID number or username of the Facebook profile.
  • User Consent: Instructions for users who have consented to provide their own information to law enforcement officials using Facebook’s Download Your Information feature (previously featured on this blog here).
  • Notification: What to do if officials believe that notification would jeopardize an investigation.
  • Testimony: Facebook’s declaration that they do not provide expert testimony support, but if “a special form of certification is required”, the requestor should attach it to the records request.
  • Cost Reimbursement: Facebook’s statement that they “may seek reimbursement for costs in responding to requests for information as provided by law”, without specifying what those costs might be (which is different than the specific costs stated in the previous page).
  • Contact Information: To submit records requests via email, snail mail or fax – but only if you’re a law enforcement officer.

So, what do you think?  Have you needed to request information from Facebook for litigation purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Our 2012 Predictions
 

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year.  It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are.  One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry.  Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

  • Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”.  Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”.  Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud).  It’s inevitable.
  • More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production.  With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so.  Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
  • Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery.  It’s the cost effective alternative.  But, organizations are demanding the control of a desktop application within their eDiscovery applications.  The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves.  And, more providers are responding to those needs.  That trend will continue this year.
  • Technology Assisted Review: This was the most popular prediction among the pundits we reviewed.  The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015.  More than five times the data in five years.  Even in the smaller cases, there’s simply too much data to not use technology to get through it all.  Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
  • Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more.  As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well.  And, eDiscovery providers are taking note.
  • Continued Focus on International eDiscovery:  So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue.  The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
  • Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award.  As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose?  Pay my costs!”.
  • Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control.  It will take time, but progress will be made toward that goal this year.
  • Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable.  In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
  • Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry.  This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think?  Care to offer your own predictions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.