Welcome to our August issue of the Discovery Update. With modern technology rapidly evolving, here are some articles to help keep you updated and versed in all things legal technology.
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When your Case takes you to Facebook: Social Media Evidence and Civil Discovery
By Christopher Coble
Social media is changing the way lawyers work. There are judges on Twitter, law firms advertising on Facebook, and digital-era communications like emojis working their way into court opinions. But, most importantly, social media has created a treasure trove of information that could be potentially relevant to litigation.
That means your smoking gun is much more likely to be a Facebook DM or Instagram photo as, well, a smoking gun. It’s no wonder, then, that more than 50 percent of attorneys report seeing an increase in discovery around social media and mobile devices in their practice. Yet when it comes to actually conducting such discovery, social media evidence can pose some unique challenges.
Varying Standards for Social Media Discovery
The availability of discovery into social media evidence can be significantly impacted by your venue and jurisdiction. In the federal courts, the standard is fairly straightforward and consistently applied: if social media evidence is relevant, nonprivileged, and proportional to the needs of the case, then it is discoverable.
Who Says You Can’t Bates Number Native Productions?
By Craig Ball
A writer’s hubris is the conviction that when you’ve covered a topic, you’ve had your say. But new readers rarely have time or desire to plumb earlier work and, were they to try, much of what I wrote on the underpinnings of e-discovery and forensics was long ago stolen away like Persephone to a paywall-protected underworld, leaving this Demeter to mourn. So I briefly return to a point that has never gained traction in the minds of the bar, viz. why producing in native file formats doesn’t require we give up cherished Bates numbering. Doug Austin, the Zeus of e-discovery bloggers, recently re-addressed the same topic in his estimable E-Discovery Daily. Call me a copycat, but I was here first.
As many times as I’ve written and spoken on the Native DeBates, I’ve never felt I nailed the topic. I’ve not succeeded in conveying the logic, ease, and advantage of a bifurcated approach to Bates numbering and pagination. So one more shot.
Start by imagining a world where, instead of just numbering pages, runaway enumeration demanded everyone number lines of text in each item produced in discovery. That’s not far-fetched considering that pleadings in California and deposition transcripts everywhere have long numbered lines. If I demanded that of you in discovery, wouldn’t you sensibly respond that it’s overkill and lawyers have managed just fine by numbering by page breaks instead?