What is ESI?
ESI is any information stored in electronic form
All ESI is discoverable if relevant and reasonably accessible Privileges and other exceptions to discovery can apply to ESI ESI can be obtained from third parties (like your telco or
hosting company)
At the outset of litigation, each party has an automatic duty to preserve ESI.
Some Famous Examples
In the Iran-Contra affair, Oliver North’s deleted emails were “discoverable”
Detroit Mayor’s text messages to his mistress in a whistle blower case were “discoverable” where he discussed the firing
What do the cases say?
Fourth Circuit in United States v.Minder, 2009 WL 981102
(4th Cir. 2009)
Although the Court found that the hearsay exception did not apply in this case, the argument was made that Instant
Messaging should be an exception under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for “A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition…”
Cases,
cont’d. May 26, 2010, in the case of Crispin v. Christian Audigier, Inc. (C.D. Cal. Case No. No. CV 09-09509) re: the discoverability of private messages sent between users on MySpace and
Facebook.
Judge Morrow found that messages sent between users via Facebook and MySpace private messaging systems are no different than e-mail under the Stored Communications Act.
What are the Challenges?
The actual practicalities of how you gather
the social media data, preserve the data,
produce the data are very different.
It’s probably not on the company or user’s
servers, and may not even be on the social
media sites’ own servers, but rather in “the
cloud” of leased data storage capacity—
What the Experts Recommend
Earlier this year, the Wisconsin Law Journal
reported that ONTRIAL Technologies' president
Bruce Olson urged his colleagues to take social
media into account when piecing together their
archives of interoffice correspondence. He
believes organizations should do so now to
What the Experts Recommend
Because each of these social networking sites is
different, there’s really no one-size-fits-all solution to preservation, collection, or review. They’re all different, and they all have to be addressed in different ways.
Spoliation
Spoliation is the destruction or withholding of critical evidence, which pertains to email archiving in the case of eDiscovery. Analysis to determine spoliation includes determining if a party knew or should have known litigation was a possibility and if a party destroyed evidence it knew or should have known pertained to a specific case. In terms of electronic evidence, according to the Wisconsin Lawyer report, "counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and
What’s the Best Course of Action?
If you back up data every night, and keep those tapes for six weeks, for example, before recycling the media and overwriting each one, then the rules protect you from a sanctions claim for the data lost in that routine.
That is, of course, until you get notice that a lawsuit has or is reasonably likely to occur.
Other Cases re: Social Media
In Jabbar v Travel Services, Inc., 2010 WL 3563112, (D. Puerto Rico, September 10, 2010) the court granted summary judgment in favor of the defendant in a client case involving a hostile workplace claim.
The plaintiff asserted that a discriminatory comment was posted by another employee in regards to a Facebook photo taken at a company event.
The court found that there were not sufficient facts to show who owned the Facebook account or regarding any company policy of uploading photos to the Facebook service.
Although the court ruled in favor of the employer, the negative
implication of this is that discrimination involving social networking may present an issue for employers in the future where a company
Other Cases Re: Social Media
TEKsystems, Inc. v. Hammernick, No 0:10-cv-0081,
filed in the United States District Court for the District of Minnesota, could have far-reaching implications for
restrictive covenants in employment law.
In this case, a former TEKsystems, Inc., employee
Social Media Provider is “Morally
Neutral”
Under 47 U.S.C. § 230 in the Communications Decency Act (CDA).
The CDA immunizes a provider of an “interactive computer service”
from liability for most state and federal claims arising from objectionable content posted by third parties: “No provider … of an interactive
computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” See 47 U.S.C. § 230(c)(1)).
Websites fall within the statutory definition of an “interactive computer service.” The CDA immunity was enacted to promote robust and