Social Media: the Next eDiscovery Elephant in the Corner – Electronic Discovery

http://ow.ly/6DDRc

An article from electronicdiscoveryinfo.com written by jcscholtes.

This article discusses the increased importance of social media to eDiscovery processes.  More social media electronically stored information is being requested in litigation, and eDiscovery services will have an increased need to be able to process such data.

As the article states, " In a recent survey by the Enterprise Strategy Group (ESG) 41% of the questioned legal professionals indicated that identifying and collecting from new data sources as SharePoint and the cloud is challenging. In short, social media composes new challenges for both IT and legal departments."

The article also mentions that Gartner estimates that social media will be subject to eDiscovery requests for 1/2 of existing corporations by the close of 2013.

Some of the startling numbers provided by the article are as follows:

• In 2009 already two-thirds of the world’s internet population visited social networking or blogging sites
• Social media accounts for one in every six minutes spent online
• Last year Americans spend a third of their online time (36 percent) communicating and networking across social networks, blogs, personal email and instant messaging, and that number is rapidly growing
• In February 2011 the average number of Tweets people sent per day, was 140 million. On March 11 of that same year it was 170 million and the number is still growing
• Facebook has more than 750 million active users. 50% of their active users log on to Facebook every day
• The US houses 114.55 million, the Netherlands 6.30 million, Germany 18.81 million and the UK 19.27 million active social networkers 
• “750 million photos were uploaded to Facebook over New Year’s weekend 2011”

The article also references some laws that impact the use of social media, "As an employer there are some laws you need to consider, especially when using social networks in the recruitment process.

• The Information Commissioner’s Office (ICO) has not issued specific guidance on the use of online profiles to inform recruitment decisions. There are recommendations like “give the applicant an opportunity to make representations should any of the checks produce discrepancies” .
• Data Protection Act (DPA): in the US, some states have laws protecting employees’ legal off-duty activities and political activities or affiliations.
• Section 7 of the National Labor Relations Act protects employees who engage in “concerted activities” that includes the right to discuss the terms and conditions of employment with colleagues and outsiders. 
• Federal and state whistleblower laws protect employees who complain about misconduct and potential securities fraud violations."

As the author states, "It is clear that data in social networks are the next elephant in the corner. After having dealt with exponential data volumes, email and multimedia in the past years, there is a new dimension to records management and eDiscovery: not only do we have even more data than ever, we also no longer have control over that data within our secure corporate networks: it is now in the cloud, which basically that means it is everywhere and nowhere and we no longer own the data! Implementing eDiscovery and records management will be an even bigger challenge!"

P.S. You can read Joe's article on this topic, it provides a link at the end of the article to a social media database that shows over 230 corporations social media use policies: http://www.litigationsupporttechnologyandnews.com/2011/09/social-media-in-workplace-regulating.html

The Difference Between Virtualization and Cloud Computing

http://ow.ly/6DDom

Article by Chris Brenton on the Cloud Passage Blog.

This article provides information on the differences between virtualization and Cloud computing.

As the article states, "Virtualization, at its core, is the ability to emulate hardware via software. If we walk through the system initialization processes, some form of operating system still needs to be booted from the hardware. This may be a full blow OS such as Linux or Windows, or it may be a stripped down OS specifically designed to provide virtualization, such as VMware’s ESXi (which is a stripped down Linux operating system). In either case an operating system is first booted and then an emulation software stack is loaded which is referred to as a “hypervisor”.

The hypervisor is the component which is responsible for emulating specific hardware configurations to guest operating systems."

The article provides a description of cloud computing as well, "...a cloud maximizes the efficiency of a resource by spreading it out over multiple consumers. For example let’s say that you and five of your neighbors determine you only actually need a car for two hours a day. If you each buy your own car, you will have purchased six cars total and each will spend an overwhelming majority of its time sitting in the driveway idle. If you all chip in on a single car however, you each spend 1/6th as much, and if schedules align you each still have a vehicle available for the required two hours per day. This is essentially how resource pooling works in cloud computing, except the shared resources are CPU’s, hard drives, network access, etc. rather than automobiles."

The article also discusses the intersection between the two, "So how does virtualization and cloud fit together? Virtualization simplifies the process of sharing computer resources. Cloud computing needs to be able to share resources in order to improve efficiency and reduce costs. This makes the two technologies a natural fit to work together. Virtualization increases the efficiency of hardware utilization, while cloud adds a layer of management so that VMs care be created, scaled and torn down as required. This is why a majority of today’s cloud solutions are built on virtualization technology."

To further illustrate the point the author states, "A good analogy is home building. Most houses are built on top of basements. They are great for storage as well as expanded living space. Basements are certainly not a requirement of house building however as many homes are built on slabs or even stilts. So while it can be argued that using a basement results in a better house, it is not a prerequisite to building a home. Think of cloud (house building) and virtualization (basement) in the same light and you’ll get the idea."

ILTA 2011: Big data, discovery and collaboration demand our legal attention

http://ow.ly/6DsBB

An article by Sean Martin published by Computerworld.

This article discusses the recent ILTA conference and the importance of the eDiscovery topic at that conference.

As the article states, "eDiscovery was one of the hot topics at the recent International Legal Technology Association 2011 (ILTA 2011) Conference in Nashville, Tenn., which drew more than 2,500 attendees. Nearly 25% of the 185 vendors exhibiting at the show claimed to provide discovery products and/or services, and many more had offerings that could play a role.

Why did eDiscovery make such a big impact, and why now? The answer may lie in the fact that as law firms and in-house counsel engage in the identification, collection and processing of electronic evidence, they are experiencing significant challenges in the centralization, management and preservation of the information."

The author points out, "eDiscovery is hard to get right, and, to make matters worse, the sheer volume of dataand the number of data sources continues to grow exponentially. In a recent IDC report sponsored by EMC, the research firm forecasted that, by the end of this year, the volume of data created annually is expected to exceed 1.8 zettabytes, having grown by a factor of nine over the previous five years. That number is anticipated to increase to 35 zettabytes created annually by 2020."

The article references some of the discussions held at ILTA, and some of the suggested best practices for dealing with electronically stored information.

The article concludes with the following statement, "Legal business is all about the evidence and related case matter. Organizations that delay in their development of a good plan surrounding the identification, collection, organization, processing, analysis, production and preservation of information from all relevant sources could find themselves faced with spoliation claims, court sanctions and legal judgments, potentially resulting in huge penalties and even brand destruction.

Fortunately, there are a number of technologies and services available to aid in the eDiscovery process, giving organizations options to help avoid such cases."

ELECTRONIC DISCOVERY IN THE CLOUD

http://ow.ly/6DjlH

Article in the Duke Technology & Law Review by Alberto Araiza.

This comprehensive article discusses eDiscovery issues that pertain to the use of cloud computing. The article states a proposition that the Federal Rules of Civil Procedure need to be amended (again) to reflect the rise in the use of cloud computing for eDiscovery services.

As the article states, "The introduction of Cloud Computing to a variety of industries has presented new complexities in the discovery phase of litigation. Pretrial discovery procedures involve delineating the scope of discoverable electronically stored information (ESI) as potentially leading to relevant evidence. In Cloud Computing, shared data centers housing ESI are central to discovery. Although the Federal Rules of Discovery (Rules) were designed with an inherent flexibility and applicability to technological developments in personal computing, they cannot effectively be adapted to the Cloud Computing context."

The author goes on further to point out, "The Rules are not flexible enough to encompass the technological paradigm shift to Cloud Computing. Specifically, the Rules do not provide guidelines for the production, preservation, and spoliation of ESI in a shared environment. This problem may be mitigated through technological means or by changing the Rules. Further, negotiating the terms of a contractual relationship between a Cloud provider and client may provide sufficient protection for both parties. Clients should consider whether their service contracts include sufficient safeguards against inadvertent discoveries of data, accurate indications of costs, and mechanisms for complying with the Rules."


P.S.  This article, as law review articles tend to, provides some excellent reference material via many interesting sources.

ELECTRONIC DISCOVERY IN THE CLOUD

http://ow.ly/6DjlH

Law Review article by Alberto Araiza in the Duke Technology

Court Orders Government to Produce Electronic Data in Usable Form; Recognizes Need for E-Discovery Rules in Criminal Cases

http://ow.ly/6D7Qt

A blog post from the JD Supra blog, includes an article by Mark Mukasey and David Shargel of Bracewell and Giuliani.

The article outlines a specific case in which the court held that eDiscovery rules of civil litigation are also applicable to criminal matters.

As the blog post states, "Affirming that issues concerning electronically stored information (ESI) are confined neither to civil matters nor private-party litigants, a federal district court this month ordered prosecutors to reproduce discovery in a reasonably useful format, mirroring the requirements of the Federal Rules of Civil Procedure."

From the Experts: Read the Fine Print Before You Tweet

http://ow.ly/6CNjq

An article appearing on law.com on the Corporate Counsel webpage written by Joshua Kubicki.

The article discusses the use of social media, and the impact it is having upon the corporate workplace.  In addition, the article states that Google+ will make the lines more blurred than ever between personal privacy and employer's rights to protect corporate information.

As the article states, "With the boundaries between the personal and professional realms now blurred, the question of "personal privacy" vs. "company policy" is inevitably encountered. And with the arrival of Google+, those boundaries promise to become all the more hazy, which translates to a specific and pressing business need for executives to be keenly aware of—and proactive about—the risks social media present. Although significant legal precedents are currently lacking (most related cases are settled out of court), it is only a matter of time before social media data will be the primary focus—if not the cause—of corporate legal disputes. When this occurs, corporate leadership and general counsel will be obliged to offer up any or all corporate social media data at the behest of a plaintiff or defendant, not to mention possibly that of employees as well. And the monetary cost and reputational damage potentially inflicted by the ever-growing mountain of searchable, discoverable data is staggering."

As the article further states, "According to data from comScore, Alexa, and Flurry Analytics, an average person spends 74 minutes per day on the Internet and an 81 additional minutes on mobile apps. Twitter users send upward of 200 million tweets per day. All Internet users combined send a staggering 13,800,000 messages, 5,700,000 status updates, and 30,000,000 comments every hour. Practically every item is potential evidence in a lawsuit. If your company hasn't been called on to produce social media evidence yet, be prepared. According to Gartner research, [http://www.ediscovery-news.com/half-of-all-companies-will-have-been-asked-to-produce-material/] by the end of 2013, more than half of all companies will be asked to produce this evidence in litigation."

The balance between the positive results that social media can cause for a business, pitted against the potential risks, is an interesting issue. The author provides some tips on how to create an effective social media policy.

This issues continues to be a major concern, and is likely to generate much new case precedent over the coming months.

P.S.  You can read my article on this topic, it provides a link at the end of the article to a social media database that shows over 230 corporations social media use policies: http://www.litigationsupporttechnologyandnews.com/2011/09/social-media-in-workplace-regulating.html