The Discovery Update – March 2011

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March 2011

From the President

As we continue to stay in step with the rate of technology’s growth in the legal industry, we have recently added Mobile Transcript to our services and will continue including a CD of your transcripts and exhibits with every hard copy transcript delivered.

This month, our feature article “E-Discovery Rules Applied to Social Media: What This Means in Practical Terms for Businesses” talks about the legal obligations that companies now have to collect data from social media sources.

We hope that this article along with “The Litigator’s Guide to Metadata” will help you gain more insight on how to work with the evolving landscape of social media and lend it self to helping your clients.

Best regards,
Sheila Atkinson-Baker

E-Discovery Rules Applied to Social Media: What This Means in Practical Terms for Businesses

By Michelle Sherman,
Special Counsel, Sheppard Mullin, Los Angeles

Companies are on social media. They are interacting and connecting with customers through Facebook, Twitter and blogs. In a study last year, so the numbers are already on the conservative side, 65% of Fortune Global 100 companies have active Twitter accounts, and 54% have Facebook fan pages. One third of these companies have a blog. This is how companies are doing business today. And, with this presence online comes legal obligations to capture and save these communications.

1. E-Discovery Rules Apply To Social Media Activity.

These communications and online activity should be thought of as an extension of “electronically stored information” (“ESI”) and the discovery rules that apply when a company is in a legal dispute that would trigger a duty to preserve company emails and electronic documents. When the Federal Rules of Civil Procedure were amended in 2006 to include ESI, the term was “intended to be read expansively to include all current and future electronic storage mediums” Notes of the Advisory Committee to the 2006 Amendments to Rule 34. It does not matter how brief the storage period, courts will treat the information as discoverable. Accordingly, even storage in the “cloud” or on a social networking site will be treated as discoverable ESI.
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Proper Deposition Objections

By Susan Minsberg
www.lawyerist.com

You’re taking your first (or tenth) deposition. Make sure you are ready to handle objections. And make sure you know which objections are proper and which are improper. Once you are armed with that information, you can keep the deposition proceeding smoothly.

Face it, depositions can be tedious. But they are so important in litigation. Deposition testimony can make or break a case.

When I was preparing to take my first deposition as a new lawyer many years ago, I sat down and read a book (no internet back then) that discussed deposition techniques. I was surprised to learn that very few objections are proper in a deposition.

Many lawyers have not done their homework and make deposition objections that are improper and interrupt the flow of information. And there are other lawyers who have done their homework and make objections simply to interrupt that flow and to intimidate opposing counsel.
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