Because we know that the success of your depositions is a vital part of the litigation process, we continue to provide you with useful tips, tools and information in our e-newsletters that we hope you can use in your practice.
This month, we included an article about social media and internet investigations, and an article about “reasonable inquiry” rules. We also included one of our past articles, which focuses on objections that are appropriate in a deposition.
As always, we invite you to send us any articles or tips you may have regarding the discovery process so we can share them with our readers, as well.
Social Media & Internet Investigations–Safely Navigating a Sea of Information
By Cliff Mosby Stein Investigations, Los Angeles
For attorneys, and for many of the private investigators that specialize in supporting attorneys in their legal efforts, the world of social media remains largely uncharted territory. Unlike the early explorers who mapped our relatively solid physical world, we are faced with the problem of trying to navigate an ever-changing landscape in the virtual world of the internet.
There is no question that social media and the internet can be a very useful resource for successful litigation. The questions that do exist mainly concern how to most successfully utilize this amorphous entity.
Our experience in conducting social media and internet investigations has shown us some general rules of the road, which we feel provide the best results for the use of this tool in the legal arena.
The single most important aspect of a social media investigation is knowing that you have the correct identity of the subject you are investigating. On Facebook, Twitter and other commonly used social media, data such as the address and phone number of the person are not made available. Thus, if the subject has a common name, finding him or her on a social media site can be a futile exercise. There is a rule that makes it possible to overcome this obstacle – learn the person’s email address. It has been said that a person’s email address is the “internet version” of a person’s social security number, when it comes to identification. We have certainly found this to be an accurate assessment. Read full article >>
For E-Discovery, “Reasonable Inquiry” Rules Remain the Same
By Kroll Ontrack
Although the advent of e-discovery poses significant challenges when interpreting many of the Federal Rules of Civil Procedure, practitioners must remember their ethical duty to their client and opposing counsel during discovery remains unchanged.
Fed.R.Civ.P. 26(g)(1) requires an attorney of record to sign every discovery response and certify that, upon a reasonable inquiry, the response is legitimate, consistent with existing law, and made in good faith. Accordingly, when motions for sanctions arise, courts are empowered to determine what constitutes a “reasonable inquiry” on the facts of each case. If a court determines the party acted in bad faith, it may impose sanctions under Rule 26(g)(3). These sanctions take many forms, but decisions such as Qualcomm Inc. v. Broadcom Corp., in which the plaintiff was sanctioned $8.5 million for “monumental and intentional” discovery misconduct, are painful reminders of the consequences of missteps in the discovery process. Although the attorneys won their battle over sanctions levied against them individually for their role in the Qualcomm saga, the case lives on and demonstrates the reputational and personal impacts discovery may have on the modern practitioner. Read full article >>