Social Media Accidental Information

Counsel’s Accidental Information Back-Up Breaks the Budget

Posted: 31 Aug 2011 06:01 AM PDT http://ow.ly/6hvAc Article by Christopher D. Dize, appearing on E-Lessons Learned website. This article discusses the New York State case of Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010). In this case, counsel for the plaintiff entered into a stipulated confidentiality agreement regarding the preservation of data provided by the defendant. The stipulation called for the erasure of all the defendant's data after the termination of the case. Plaintiff's counsel accidentally stored data belonging to the defendant on various back-up tape systems, and upon realizing this error, they sought relief from the court to modify the confidentiality agreement, rather than incur the costs of data removal. The court denied the attorney's request, and so did the appellate court. The article states the following in regard to this situation: "In what was no doubt a humbling moment for plaintiff's counsel, New York's Appellate Division basically said, "You should have known better." "Plaintiff voluntarily consented to the Confidentiality Order . . . and its counsel, who have demonstrated experience in and sophisticated knowledge of electronic discovery matters, should have foreseen the problem and addressed it when the Confidentiality Order was being negotiated." The appellate division reasoned that the cost to Oxxford's counsel did "not outweigh defendants' bargained-for interest in the post-litigation destruction of its business information in outsiders' hands . . . ." The court emphasized that the plaintiff's proposed safeguards for keeping Novantas' business secrets safe amounted to "something considerably less than a guarantee." It is possible that the court would have reversed if counsel had not "demonstrated experience in and sophisticated knowledge of electronic discovery matters." But we know for sure that if you do demonstrate such experience and knowledge of e-discovery, cleanup is on you if you mess something up. And if you agree to return or destroy the other party's confidential information at the close of litigation, the ol' too-costly excuse ain't gonna cut it if you don't. This is especially true when the other party relies on a confidentiality stipulation, into which you entered while flexing your e-discovery muscles." This is a perfect example of how costly an eDiscovery error can be.

Reasonable Particularity in Requesting ESI Posted: 31 Aug 2011 05:42 AM PDT http://ow.ly/6huox Article on bowtie law blog, by Joshua Gilliland, Esq. This article discusses the case of Doubt v. NCR Corp., 2011 U.S. Dist. LEXIS 95518, 11-12 (N.D. Cal. Aug. 22, 2011). In this case both the Magistrate Judge, and later the District Court, held that a plaintiff's discovery request was overly broad, and denied the request. The requests asked for "each and every document" in several instances, the case was based on age discrimination. As the the Mr. Gilliland, the author of the article stated "A discovery request must both be relevant to a party's claims or defenses and "reasonably calculated to lead to admissible evidence." Doubt, at *11, citing Federal Rule of Civil Procedure Rule 26(b). Federal Rule of Civil Procedure Rule 34 states that a discovery "must describe with reasonable particularity each item or category of items."Doubt, at *11, citing Federal Rule of Civil Procedure Rule 34." The author describes that the court felt that the plaintiff's request was too burdensome, and would require the defendant to search through too many documents that were unrelated to the facts of the case. The article suggests the following, as a means of improving discovery requests: "For both a requesting or producing party, technology such as "early case [data] assessment" can be extremely helpful in identifying relevant discovery. However, ECDA cannot limit ESI for identification without first determining what is being searched with "reasonable particularity." In identifying ESI with "reasonable particularity" at a minimum includes the type of ESI (email, Excel, text message), the author of the ESI (Email Sender or who drafted a file), Recipients of messages, date ranges and keywords designed to identify ESI relevant to a party's claims or defenses." This case serves as a good example for the need to draft properly tailored discovery requests, and provides some insight into how to improve skills in this area.

The End of Social Media 1.0 Posted: 30 Aug 2011 06:28 PM PDT http://ow.ly/6hb8Z An article by Brian Solis posted on the briansolis.com website. This article touches on the fact that social media networks are competing, and evolving. This change in the social media landscape has caused services like Facebook to lose momentum in some aspects of its use. The author also warns against too many advertisements from corporations, and states that this may have a chilling effect on the conversations taking place on social media. The author points out that the following lessons should be learned regarding the role that social media will play: "What can we learn of this? 1) Businesses must first realize that there's more to social media than just managing an active presence, driven by an active editorial calendar. Listening is key and within each conversation lies a clue to earn relevance and ultimately establish leadership. 2) Consumers want to be heard. Social media will have to break free form the grips of marketing in order to truly socialize the enterprise to listen, engage, learn, and adapt. You can't create a social business if the business is not designed to be customer-centric from the outside-in and the inside-out. 3) Social media becomes an extension of active listening and engagement. Strategies, programs, and content are derivative of insights, catalysts for innovation, and messengers of value. More importantly, social media becomes a platform for the brand and the functions that consumers deem mandatory. From marketing to HR to service to R&D, brands will expand the role they play in social networking to make the acts of following and sharing an investment in a more meaningful relationship."

Duty to Protect Confidentiality of E-Mail Communication with One's Client Posted: 30 Aug 2011 02:10 PM PDT http://ow.ly/6h1Bf This is a formal opinion from the ABA (Formal Opinion 11-459) dated August 4, 2011 The introductory comment of this formal American Bar Association opinion states as follows: "A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party." The opinion goes on to provide other insight regarding ethical obligations associated with an attorney's duty to warn their client, and cites specific cases that pertain to this issue, as well as the ABA Model rules of professional conduct.

There's an App - and a Risk for That Posted: 30 Aug 2011 11:07 AM PDT http://ow.ly/6gQg6 Article by John Martin, Esq. partner at Nelson Mullins Riley & Scarborough, appearing on law.com on the Corporate Counsel website. The article touches on the use of iPads in the corporate environment, and the fact that much of the ESI stored in iPads could be subject to a production request in litigation. To minimize this potential risk, the author suggests a number of steps: "Because of all the above concerns, legal departments should consider adopting the following procedures to protect the confidentiality of their companies' data. You can institute these measures as company policies, and circulate them among all employees issued company iPads: The company bears no responsibility for an employee's personal use of the iPad. Employees should have no expectation of privacy in using the company's electronic resources, including all personally owned hardware to the extent it stores ESI associated with company business. Before using them for company business, employees should make the iPad available to IT personnel for implementation of security settings. Employees are expected to immediately report any loss or theft of an iPad, or possible unauthorized access to an iPad. Remote wipe will be initiated immediately when any iPad is lost or stolen. Pursuant to records management policy, employees must consent to dispose of data from any iPad used for company business when retention of such ESI on the iPad is no longer necessary for legal hold or company retention purposes. Limits on downloading apps shall be enforced, and specific apps for corporate business shall be required. Limited use or designation of specific acceptable social networking sites shall be enforced. For legal hold purposes, existing policies and notifications also extend to business content stored on iPads. Employees must affirmatively accept the duty to personally enforce records management and litigation hold directives across their iPad content."

5 Enterprise Social Trends for Next 5 Years Posted: 30 Aug 2011 09:18 AM PDT http://ow.ly/6gHW2 Article by Debra Donston-Miller appearing on infoweek.com This article touches on 5 anticipated trends that the use of social media networks will cause over the next 5 years. The author projects that the 5 following areas will be impacted through the increasing use of social media: 1. Organizations will "flatten"; 2. Customers will be a bigger part of the corporate community; 3. Customer service models will change dramatically; 4. Internal social networks will be the new intranets; 5. The marketing function will continue to expand. The author makes some interesting points about all the topics referenced above. There certainly are some unique new trends that will continue to develop as result of the increased presence of social media networks.