Video Interview: Discussing the role of social media in litigation with LXBN TV

Follow Barry on Twitter (@barrywillms)

Following up on the post I wrote about social media in 21st century litigation, I had the opportunity to speak with Colin O'Keefe of LXBN on the matter. In the interview I discussed how social media evidence is becoming more prevalent in corporate litigation and offered my thoughts on how companies can prepare for it. 

An Aerial View of the Association of Certified E-Discovery Specialists

Follow Barry on Twitter (@barrywillms)


The third annual Association of Certified E-Discovery Specialists (ACEDS) Conference was held again this year at the Westin Diplomat in Hollywood, Fla. We had great lodgings for sure, but they did not order the warm weather in so-called sunny Florida. Next year’s conference will be moved to May in order to compensate for this unruly weather. I guess I can’t complain too much; there are colder places in February/March, especially this year.

The gathering seemed to be a bit smaller than last year, but it was a really good group of professionals. There were several good sessions in addition to lots of opportunities to mingle and meet everyone. The information presented focused on a number of areas but a lot of them could be labeled within technology assisted review (TAR), social media and various ‘best practices’ within the industry.

It seems everyone is starting to dabble in TAR by various names (computer-assisted, technology-assisted, predictive coding, etc.). Much of the discussion went beyond simply being comfortable with the subject matter but included discussions on how to properly validate the process, workflow and output to make sure to achieve your goals and benchmarks.

The use of social media in litigation has not become as big as it was originally projected to be in 2013. However, its presence in cases continues to grow. Tweets, Facebook pages and many other networks are more routinely being collected and produced in litigation than ever before. We can only imagine that this will increase over time. We were told, for example, that instant messaging is the norm for business communications in some Asian countries instead of email. It’s certainly something we’ve been anticipating for a couple of years here in the states and that our technology partners are well prepared for.

The ‘best practices’ within the industry sessions included the following: dealing with data privacy issues of the EU, preventing malpractice or having ethical issues overtake you, and following a process to meet your budget, review and production objectives. There it is again: Success always comes from having a process and following it. As we always tell clients, it’s the project manager’s responsibility to ensure there is a process that is documented, defensible and ultimately repeatable in a future matter. Here are a few quick hits on the good, the ‘OK’ and the bad of the conference:

The good: It was a gathering of practitioners of e-discovery, folks who actually do this day in and day out. Lawyers, consultants, paralegals, IT professionals and technology vendors provided a good mix. It was refreshing to hear war stories from those who deal in process and who want to perfect the best practices of a growing industry. While the conference overdid the ‘experts’ language a bit, it really was a good group of professionals who work exclusively in this industry that had a lot to share on how best to accomplish goals. In the end, process always wins out. It’s best for clients, budgets, meeting deadlines and your own sanity.

The ‘OK’: While the topics were timely, the presentations this year seemed a bit elementary. There were too many presenters on each panel and not enough variety of speakers from one panel to the next (seemingly lots of folks did multiple panels). Variety is good for the soul. I would encourage the ACEDS team to expand the speaker selection and let each panel have a bit more time to develop its topics and provide more time for Q&A.

The bad: My constant pet peeve: too much time on introductions. For example, the first session didn’t start on time and resulted in the panelists not being able to talk until we were more than 35 minutes into the program. This limited the Q&A time which is often a very helpful part of the conversation. Then again, I’ve been to conferences where this would have been a good thing!

The moral of the story is that it wasn’t perfect. But what conference ever is? I appreciate ACEDS’ attempt at bringing together the best of breed within e-discovery people who are well versed in this field. My philosophy is the more we focus on best practices, the more clients will rely on us to help achieve their goals. All in all, it was a good event filled with useful information and solid connections with other e-discovery specialists.

 

The Use of Social Media in 21st-Century Litigation

Recently I traveled to Birmingham, Ala., to attend a Symposium titled "The Use of Social Media in 21st-Century Litigation," hosted by the American Journal of Trial Advocacy. It was held in the moot courtroom of the school of law, and was well attended: probably more than 200 attorneys and law students in all.

The Symposium was a precursor to an article that will be published this spring on social media issues in the American Journal of Trial Advocacy. It consisted of two panels and one keynote speaker. The presenters were very knowledgeable and the moderators kept the discussion relevant and at a good pace.

Panel One, “Pretrial and Discovery,” was very practical in its application and instruction. Each speaker was given 10 minutes to present, which was followed by a panel discussion with some Q&A. The panelists included:

  • Judge John L. Carroll, dean and Ethel P. Malugen Professor of Law at Cumberland School of Law
  • Steven C. Bennett, partner at Jones Day (New York)
  • John G. Browning, partner at Lewis Brisbois Bisgaard & Smith (Dallas)
  • T. Roe Frazer III, attorney and managing executive for Digome and Cicayda (Nashville)

Here are some of the nuggets that stuck with me from the session:

  • Frazier noted that three quarters of internet users use social media or blogs every day, every app is social media and “social media is like an uber-diary.”
  • Browning continued along those lines, stating that this ‘diary’ consists of what you’ve been doing online, where you’ve been and where you’re going.
  • Bennett mentioned that “Twitter has over 400 million users per day (2012)” and that “competent representation includes knowing about and pursuing social media.” He cautioned us by stating that “there is a ‘wayback’ machine coming for social media similar to the current internet ‘wayback’ machine and because of this nothing is ever erased.”

Something to consider before posting anything on social media.

The keynote speaker was The Honorable Paul W. Grimm, District Judge for the United States District Court for the District of Maryland. His talk and his paper were focused on authenticating social media at trial. He stated that “social media shows state of mind and authenticating social media gives practitioners the most difficulty.” His talk was both informative and entertaining. Attendees could tell he was looking for a case where he could expound on the steps necessary to authenticate social media.

The second panel was moderated by The Honorable John E. Ott, chief magistrate judge, United States Northern District of Alabama, and the following panelists:

  • Dr. Cathy Parker, professor of journalism and mass communication, University of North Carolina, Chapel Hill
  • Eric P. Robinson, professor at City University of New York Graduate School of Journalism
  • J. Paul Zimmerman, attorney at Christian & Small (Birmingham, AL)

Panel Two was entitled “Issues at Trial.” These issues related to First Amendment rights to know what’s going on in the courtroom versus the use of social media. The discussion covered the use of social media by journalists, the public, the jury, the lawyers (voir dire) and even the Judge. The topics ranged from the annoyance of hearing someone typing on a laptop, to the invasion of privacy of jurors, to whether you had to notify someone that you were investigating them via social media. It ended with whether it’s appropriate or not for a juror to friend the Judge on Facebook.

I’ve presented on this subject several times myself, and our discovery teams are seeing more and more of it with each passing review. But as this panel reminded me, there’s no such thing as being “up to speed” on social media – the ways people interact and communicate keep changing, and there are always new vendors and tools that are adjusting to deal with these platforms.

In many ways it’s a nightmare for our clients to manage and regulate, so to speak … but it’s not going away, that’s a certainty. Events like these are a great way to hear how others deal with these challenges and where they anticipate issues down the road.

Each of the panelists and the keynote speaker wrote articles that will be published this spring in the American Journal of Trial Advocacy. This would make a good addition to your law library.

Q&A: Sue Dyer, Senior Litigation Counsel, HCA - "A Repeatable Process"

Sue Dyer has spent the last seven years in Hospital Corporation of America (HCA)’s 50-attorney legal department and, as Senior Litigation Counsel, has been on the front lines of HCA’s development of a national e-discovery approach and protocol, a ‘repeatable’ process from which the company is already seeing benefits.

The largest for-profit hospital operator in the U.S., HCA had $26 billion in revenue in 2007 and was #87 on the 2007 Fortune 500 list. Ms. Dyer was nice enough to speak with Lawdable about HCA’s litigation (and specifically e-discovery) initiatives:

Lawdable: Discuss how the management of the e-discovery process has changed in the last 2-3 years, and/or how HCA’s approach has evolved.

SD: We are light years ahead of where we were just two years ago. Even though we’ve been focused on e-discovery for several years, in the last two years we’ve spent a lot of time educating ourselves about our IT systems and the multitude of e-discovery products on the market. Our goals have included the development of accurate and cost-effective processes that are repeatable. We’ve identified partners that share our belief in collaboration and that can help us accomplish these goals and, as a result, we have been able to implement many initiatives in the last year. Our approach also evolves with the evolving law in this area and the development of available technology.

What we’ve seen is that, with a repeatable process, we are able to collect data from one e-discovery project that guides us on each subsequent project. The data collection also helps us to better predict the expense of subsequent and/or similar cases.

L: Talk about your e-discovery communication process (and what you establish) with outside counsel and other legal service providers. How do you manage the process?

SD: We are actively involved at the beginning of each project in order to get the team acquainted with each other, to identify the location of the effected data and to participate in the project planning. Due to our large geographic footprint, we work with a lot of

different outside counsel. Outside counsel is a variable on each project. We try and use Counsel On Call on each project for consistency and knowledge retention in the application of our protocols as well as for data collection across projects.

Once the project launches, Counsel On Call provides regular, sometimes daily, detailed progress reports that include each attorney’s review rate for that period of time, the amount of data reviewed, amount of data remaining to review, marked and unmarked files by reviewer, reviewer hours, and other data. We also request notebooks summarizing the details of each e-discovery project (the data, costs per gigabyte or document, productivity, etc.) and a year-end overview that helps us evaluate our processes and aids our decision-making on subsequent projects.

L: Has the current economic climate forced any changes in your department/legal department? Do you anticipate changes (or further changes) in the near future?

SD: For the past several years, we have been fostering relationships with talented outside counsel who partner with us in our effort to control legal fees and expenses. We do this through creative pricing and the ability to work effectively and efficiently with a lean legal team. The current economic climate just increases the importance of this type of relationship.

During this same time period, our approach to e-discovery has been more fully developed, with accuracy, collaboration and cost-effectiveness as key factors. This is a significant area of expense and, in order to control some of the cost, we’ve developed the approach in which Counsel On Call plays a significant role. Using Counsel On Call as much as we can enables us to obtain quality legal services at unbeatable prices.

As for the future … Regardless of the economic climate, we’ll continue to employ both of these cost-saving strategies, as well as others.

L: What websites (and/or blogs) do you like to visit?

SD: I catch the news on either the Fox News or Tennessean websites. For professional websites, though, there’s just so much information out there. You have to pick and choose what to spend your time reading. I don’t do a lot of Internet surfing. Once I identify a reliable, accurate resource, I bookmark it.

How the information is packaged is important – it needs to be easily accessible and simple to scan. I like the updates I get from Kroll, as one example, and I regularly read the Corporate E-discovery Forum blog.

L: Let’s say you’re about to take a sabbatical, and someone is going to step into your role for the next six months … What advice would you give that person?

SD: I would love a six-month sabbatical! Probably the best advice I could give is to not be afraid to ask questions. HCA is a large organization and it’s challenging to get your bearings at first. Our in-house team is very good about helping each other out, especially the newer attorneys.

I’d also recommend developing a “triage” system. Way more work comes in than you can possibly get through in a given day, and you have to have a method to prioritize. Otherwise you’ll never get anything accomplished.