An Introduction to eDiscovery and Social Media - Part 1

Social media usage has become deeply ingrained in American life.  According to the Pew Research Center, “74% of online adults use social networking sites,” and more than half of online adults now use two or more social media sites.   More than half of online adults are Facebook users, and 70% of Facebook users engage with the site daily.  Nielsen reports that 64% of overall social media users use social media sites at least once a day.  As far back as 2012, 46% of adult internet users engaged in the posting of their photos and videos online.
social media and ediscovery

Social media has also become increasingly prominent in litigation.  As was written in fall 2014, in The Judge’s Journal:
As to the value of the evidence, it cannot be overstated.  Some experts estimate that Facebook postings emerge as evidence in as much as 60 percent of divorce cases. Personal injury is probably a close second, most likely followed by employment cases. [emphasis added]
As the frequency of use and the importance of social media evidence have grown, so too have the application of sanctions for the spoliation of social media evidence.  In one widely-reported case, the deliberate destruction of social media posts resulted in a $722,000 award of fees and costs and a five-year suspension for the attorney who directed his client to “clean up his Facebook page.” 
Because of its novelty, its variety, and its volume, social media materials present a range of challenges for discovery practitioners and litigators.  When can social media evidence be obtained and used?  By what legal mechanisms can it be obtained?  What are the technical options and challenges associated with obtaining it?  Once obtained, how can it be authenticated for use as evidence?  Does seeking or using social media evidence raise any special ethical issues?
Over the next several weeks, this blog series will attempt to answer these questions through a review of relevant case law, white papers, and articles.  We begin in this Part 1 with an introduction to what we talk about when we talk about social media.

INTRODUCTION

When we talk about social media, we are referring to an extraordinarily large and diverse category of potential sources.  In the most general sense, “[s]ocial media are computer-mediated tools that allow people to create, share or exchange information, ideas, and pictures/videos in virtual communities and networks.”  Encompassed within that definition are potential sources such as blogs, photo sharing sites, video sharing sites, professional networking sites, social networking sites, topical discussion forums, interest-based communities, product, and service review sites, online gaming environments, and even virtual worlds.  New variations appear regularly and may be adopted quickly: Facebook (2004), Twitter (2006), Tumblr (2007), Pinterest (2010), Snapchat (2011).
This large and diverse category of potential sources can also offer a large and diverse range of available evidence.  Facebook, for example, stores, not just the content users post but also their messages, chat logs, log-on times, posting times, some of their deleted materials, details about their friend network, GPS data extracted from their posted photographs, and more.  In 2011, a law student in the European Union requested from Facebook all of the data they had on him, as he may under EU law.  The CD he eventually received contained 1,222 pages of PDF files.  A German newspaper created this video showing the extent of what Facebook knew about the student. 
And, of course, Facebook does not just have 1,200 pages of data about that one student.  Facebook maintains over 300 petabytes of data on its 1.47 billion monthly active users, with over 600 new terabytes of data being added every day. 
That is a lot of information that can be gathered for your case! See Part 2 Next week! 

Paralegals & Crisis Management – Operating in Panic Mode

I worked for an attorney who would say on a weekly basis, “This is not an emergency room. We are not performing life and death surgery.” He used this statement any time someone in the office hit the panic button. I'll admit that he had a unique perspective because his wife was an emergency room physician who dealt with real life and death situations on a daily basis.


He's the only attorney I worked for during my career as a paralegal who never hit the panic button. This is extremely rare. While some attorneys hit the panic button frequently, for a variety of reasons, a great attorney knows the difference between a true emergency and just another day at a busy law firm.
I worked for another attorney who had a hard rule that no one was allowed to speak to him for the first 30 minutes he was in the office. He said that he never walked into the office when there was not an emergency. For this reason, he refused to deal with anyone or anything until he had at least 30 minutes to check emails, listen to voicemails, and drink a cup of coffee. He refused to give in to the concept that someone’s failure to act constituted an emergency on his part. He believed that every emergency was a direct result of someone’s failure to do their job correctly.
Over time I learned that a good paralegal operates somewhere in the middle of these two concepts. We realize that our attorneys and others around us push the panic button but we refuse to be controlled by their sense of panic. A good paralegal knows that the best way to handle any crisis is to be proactive. This includes handling a boss that pushes the panic button on a daily basis. Yes, I have worked for that type of attorney, too!
The Definition of “Panic”
The definition of panic is a “sudden uncontrollable fear or anxiety that causes wildly unthinking behavior.” When someone panics, they stop thinking and offer little to no help in resolving the problem. Attorneys operating in panic mode may do so because they're disorganized and fail to set priorities. It could be a part of the attorney’s personality that is difficult to control. 
Regardless of the reason, it’s the paralegal’s job to remain calm in the face of a “life and death” crisis. You are an expert problem solver, a master negotiator, and a skillful communicator. You have an amazing analytical mind that pays attention to detail, remaining calm in the face of crisis. This is also the definition of a triage nurse.  While you may not be dealing literally with life and death in your law firm, there’s a lot you can learn from a triage nurse.
Triage in a Law Firm
Merriam-Webster defines triage as:
  1. The sorting of and allocation of treatment to patients and especially battle and disaster victims according to a system of priorities designed to maximize the number of survivors.
  1. The assigning of priority order to projects on the basis of where funds and other resources can be best used, are most needed, or are most likely to achieve success.
Let’s look at each of these definitions in terms of dealing with an attorney who always seems to be in crisis mode. In both definitions, handling a crisis requires the paralegal to be able to assess the situation quickly and assign priorities. You must first get as much information as you can about the situation and make your own assessment considering the level of urgency. Just because your attorney believes every situation is a crisis doesn't mean that EVERY situation is, in fact, a crisis. If your attorney's in panic mode, you should be concerned and you should act quickly. However, what you do is as important as how quickly you do it. First, use your analytical skills to look at all of the details and determine the priority of tasks.
Assigning priority also means using your resources efficiently. Your resources may include other staff members and professionals outside of the firm as well as your attorney and yourself. Delegate the highest priority tasks to individuals who are best suited to perform those tasks. Many attorneys who operate in panic mode believe they need to do everything themselves. By helping your attorney delegate tasks, you are helping to defuse the panic. Set up a schedule and procedure for everyone to report their progress so the attorney feels a sense of control.  Control defuses panic.
Another important element is having a system. Think of this in terms of a fire drill.  In one particular law firm where I previously worked, the offices were on the 15th floor. As office manager, I was required to make sure everyone participated in fire drills. We had several employees who complained each time we had a fire drill. They didn't like walking downstairs and were very vocal about the absurdity of practicing vacating a building. In their minds, they didn't need to practice leaving the office. 
However, the reason behind the fire drills was to practice walking down the stairs (something we're capable of doing in a normal situation). If you do this enough, in an emergency situation when the stairs are filled with smoke and people are shouting and panicking, the hope is that you'll “automatically” perform the same procedure you did during all of the non-emergency practices.
If you have a system in place for dealing with various small and large problems that arise, you’re less likely to panic. When faced with a crisis, follow the procedures in your system. Unfortunately, the paralegals with the best systems are typically the ones who work for a panic mode boss – it’s a necessity. They’ve learned that being organized and having a system for handling various matters is the best way to deal with a boss who creates some type of crisis to panic about each day. 
Being organized is one of the best defenses against panic because it gives you a “safe and practiced route” to get out of the burning building. Remember, your boss may have set the fire but it’s your job to put it out each time. It’s one of many roles we play each day as a paralegal – crisis manager, problem solver, communications director, negotiator, researcher, director and, above all, a team player.
Tonya Pierce is a paralegal with over 24 years experience in several areas of the legal field (17 years as a bankruptcy paralegal and trustee paralegal).


9 Critical Ways to Improve Your Legal Writing Now

Successful paralegals possess many skills that enable them to excel. Some of the skills that attorneys value in a paralegal include attention to detail and the ability to prioritize, work under pressure, and work with minimal supervision. Perhaps the most important skill an attorney requires of their paralegal is excellent communication. Improve your legal writing now! 
legal writing skills paralegals

Communication skills include both verbal and written communication. Paralegals often act as the go-between for the attorney, client, court personnel, witnesses, experts, and other professionals involved in the case. A paralegal must be able to communicate clearly and effectively to avoid problems or issues due to miscommunication.
Written communication includes everything from pleadings to emails and letters. Unfortunately, many paralegals have a difficult time turning their thoughts into well-drafted documents. It could be that our use of social media, email, texts, and instant messaging has relaxed our writing skills. These informal forms of communication tend to encourage us to use a more relaxed form of writing. However, in the legal field, we must be able to transfer our thoughts to writing in a way that correctly interprets what we’re thinking. Legal writing has a specific framework that begins with a strong foundation. Grammar, spelling, vocabulary, and tone are all very important in the law office. Unlike the tone of this blog (conversational), the tone required for legal writing is much more formal.
How can I improve my writing skills?
  • Take a class - For most of us, it’s been a very long time since we first learned about the proper use of grammar. Taking a class that teaches grammar, structure, and punctuation is an excellent way to strengthen your foundation and improve your writing skills. You should also have a copy of The Elements of Style by Strunk and White in your desk at all times. Merriam Webster should be a bookmark you use often when checking spelling and definitions as well as when you need a good thesaurus.
  • Read challenging material - such as Supreme Court briefs and opinions, detailed pleadings, and legal research material. The best writers are often those who are avid readers. As you read, pay attention to the tone, structure, and vocabulary.  Pay attention to how various thoughts are phrased and how certain documents are structured. Legal writing takes practice but you can learn a great deal by simply reading documents that others, who have mastered legal writing, have written.
  • Use outlines – Outlines help you organize your thoughts so that your document flows correctly. It also helps you see “holes” in your thought process.
  • Write concisely – An attorney once told me that legalese developed because attorneys charged by the word centuries ago (the longer the document, the higher the fee). I never bothered to look this up but I did learn early that adding more words does not add authority to a document. Concise, tight writing is much more compelling and has a greater impact on the reader. Learning to write in a concise, pragmatic manner takes practice. The University of North Carolina at Chapel Hill has a great article about writing concisely.
  • Never use your first draft – First drafts are just that – a draft. Learning to edit your writing is essential. A good book to read is Thinking Like a Writer by Stephen V. Armstrong and Timothy P. Terrell. It’s a lawyer’s guide to effective writing and editing. You need to do more than just read your draft – you need to edit it several times before it becomes the final product. In some cases, you may substantially re-write a document several times before it’s perfect.
  • Proofread, proofread, and then proofread again – It’s very difficult to proofread your own work. I find that proofreading a day or two after I write something is the best way to catch mistakes (and I still occasionally miss something). You can sharpen your proofreading skills by taking an online course in proofreading and editing or using McGraw-Hill’s Proofreading Handbook.
  • Ask someone to review your work – Having an “editor” is a great way to catch mistakes before the document leaves the law firm.
  • Have a good topic sentence – This goes back to your grammar school days but having a solid topic sentence and building on that idea or thought is an excellent way to keep your writing concise. For longer documents, develop an outline.
  • Use the active voice – Writing in an active voice is far more compelling. For example, instead of writing, “The electrical unit was incorrectly installed by the contractor,” you should write, “The contractor incorrectly installed the electrical unit.”
The best advice for improving your legal writing skills is to practice every day.  The more you write, the more you’ll improve your legal writing skills.



















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