Noah Kovacs retired early from the legal field to pursue his first passion: music. When he’s not working through his blues chord progressions, he’s blogging about blues, bluegrass, and best practices in the small law firm marketing field. Feel free to follow him on Twitter @NoahKovacs.

Technology is moving at a rapid pace. It seems that every day there is a new gadget or networking site that allows people to communicate and interact in new ways. Some may find this wave to be a development to our culture, others—namely attorneys—see it as yet another hurdle in the pursuit of e-discovery.

Social Media

The prevalence of social media may seem like a home-run when searching for pertinent electronic evidence, however, the format and privacy settings on sites like Facebook and Twitter makes it difficult for e-discovery professionals to find admissible material. There has been much progress in determining what exactly is considered “fair game;” one early ruling that propelled the conversation was that of Crispin v. Audigier (May 2010).

Audigier, a garment manufacturer (most known for the Ed Hardy label, was alleged to have excluded the proper Crispin logo and attributed his work to another artist. The defendant (Audigier) subpoenaed Facebook among other sites, in order to collect all communication between Crispin and a third party. The court decided that private messaging would be excluded because they were deemed to be “electronic communication services” under the Stored Communication Act. However, the court did allow public comments to be further reviewed.

So this proves that there is a fine line between what can and cannot be used in social media platforms. Fortunately for some litigators, most users of these sites are unaware of the implications of posting personal information. Although there have been improvements, there is still little emphasis on virtual discretion. A mere comment—that may seem insignificant—can sometimes determine the outcome of a lawsuit. Social media will continue to be a necessary tool for e-discovery; not just for attorneys, but also for employers, schools, and law enforcement agencies.

Software

Senior Vice President and General Counsel for Google, Kent Walker, says that, “litigation is all about the documents you have and the documents you don’t have.” This constant need for pertinent information is what led to the creation of Google Apps Vault. This software significantly reduces the costs associated with data management and eDiscovery. The average case can cost a company up to $1.75M for eDiscovery. Vault retains and filters through information on all apps on the Google platform at a fraction of that cost (about $50/employee/year).

How does this software help during litigation? Let me provide a hypothetical situation: If a company is being sued by an employee who falsely accuses them of wrongful termination; the company and their attorneys can run a search and extract any and all communication made between said employee and any other party within the company (these may be filtered by several parameters like dates, times, recipients, etc.). When all pertinent communication has been found, attorneys deduce that the employee did in fact make a sexist remark to another employee: grounds for dismissal. The attorneys may be able to use specific conversations to prove that the company was, in fact, in the position to terminate the employee.

This software, while incredibly useful during litigation, can also provide proof that a company is meeting any type regulatory requirement.

What was once a job that required an incredible amount of hours and paper sifting, can now be done by typing in a few words in a search bar. However, new advances in technology change the dynamics of eDiscovery and present attorneys with new challenges with every case.