What you need to know about e-discovery in 2013

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Reflecting the always-changing world of technology, electronic discovery presents new challenges for lawyers in 2013. At the forefront: social media evidence, smartphone data and the judicial blessing of a new form of discovery review.

• Social media evidence

Lawyers and judges are still on a learning curve when it comes to the intersection of social media and evidence, from discovery requests to authentication.

Social media discovery requests are analyzed on a “case-by-case basis, and as every court points out, the judge has very broad discretion to control these matters,” said Stephen D. Riden, a commercial litigator and partner at Beck Reed Riden in Boston.

For a greater chance of success, lawyers should be careful to narrowly tailor their requests for social media evidence, Riden advised. Focus on specific individuals, such as family members or fellow employees the person interacts with on Facebook, and be sure to keep the time period within reason.

When authenticating social media evidence for trial, courts are again taking varied approaches.

While one court may not allow the introduction of a MySpace page even though it contained a picture, birth date and location of the author, another court may determine that the totality of the circumstances makes it unlikely that someone impersonated the defendant and created a fake profile with his picture and posts about his activities.

• Smartphone data

Requesting smartphone data as part of electronic discovery “is something lawyers should think about both from an offensive and defensive perspective,” said Andrew Cosgrove, a partner at Redgrave LLP in Minneapolis whose practice focuses on e-discovery, information management, privacy and data protection.

Smartphones contain traditional phone information like voicemail, call logs and text messages. But as the storage capabilities of these devices continue to increase, users store greater amounts of unique and potentially relevant information on them, Cosgrove said, including documents and applications that may contain trip information from a travel app, for example.

To start the process in a case, ask what kind of smartphone the opposing party has and what he or she uses it for, said John Simek, vice president of Sensei Enterprises in Fairfax, Va. In addition, find out the phone’s carrier so you have the option of subpoenaing data from that source.

And remember to request the device used to sync with the smartphone (typically a laptop or a desktop), Simek added. The back-up files that accumulate during a sync can be a gold mine of data, since most users are unaware that they contain copies of things like deleted texts and voicemails.

• Computer-assisted review

In February 2012, U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York was the first to issue a reported opinion in support of computer-assisted coding and review – also referred to as “predictive coding” or “intelligent review” – calling it “an acceptable way to search for relevant [electronically stored information] in appropriate cases.”

“What the Bar should take away from this opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review,” Peck wrote in Da Silva Moore v. Publicis Groupe.

The message to litigants is to seriously consider computer-assisted e-discovery.

“The real strong undercurrent of this case is the obligation between the parties not to dismiss these types of options but to discuss, collaborate and be as transparent as you can be,” Cosgrove said.