Facebook and E-Discovery

Please check out my blog post on the Gibbons E-Discovery Law Alert. It’s called How Useful is Facebook’s “Download Your Information” Feature in E-Discovery? Here is a taste:

“In October 2010, Facebook announced a new Download Your Information (“DYI”) feature, billed as ‘an easy way to quickly download to your computer everything you’ve ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information.’ …But, how effective is the DYI feature as a discovery tool? And, is there any way to be sure that the adversary is not hiding any information?”

Read the rest here. Thanks.


Blogs and Facebook Posts as Evidence in Lawsuits


The New York Daily News reports that Richmond County Supreme Court Judge Catherine DiDomenico (no relation) terminated a woman’s $850 per month alimony payment after she posted evidence of ability to work on a blog and on Facebook.

Three years ago, Dorothy McGurk won the settlement from her husband when she claimed that a 1997 car accident left her unable to work.  When her ex-husband, Brian McGurk, saw her blog posts in which she wrote about belly dancing every day, he brought the matter back before the court.  McGurk’s lawyer, Thomas Kyle, “said the blog posts convinced [the judge that] the dancer was fit enough to fend for herself.”  Kyle continued, “If she could blog for hours, if she could dance the day away in Manhattan, then how is it she couldn’t hold down a job?”

Dorothy McGurk also helped dig her own grave with a Facebook post. When a Facebook friend asked why she hadn’t posted pictures of her belly dancing on the social network, McGurk reportedly replied, “Gotta be careful what goes on line pookies, …The ex would love to fry me with that.”  Ironic.

Judge DiDomenico terminated the monthly payments from the ex-husband and awarded him $5,000, plus interest for lawyer’s fees.  The judge also ordered the ex-wife to move out of the couples’ house and awarded the ex-husband 60% of it’s value.

This story is a good example of some of the social media lessons that I constantly teach:

  1. Assume that whatever you post online is public and that anyone can find it.  Indeed, the ability for people to find your stuff is the purpose of a blog, or other website.  If you want to keep something private, keep it offline.
  2. Don’t assume that your social networking is private — even if you restrict your posts to a small number of Facebook (or other social network) friends; you never know how what you write may surface.  McGurk certainly didn’t expect her Facebook comment to be read by her ex husband.
  3. If you’re a lawyer, use social media as a tool to help win your case.

Autonomy iManage Early Adopters (ILTA Presentation)

At the International Legal Technology Association conference in Washington D.C. I’m attending the Autonomy iManage Early Adopter session.   Among others, my colleague at Gibbons P.C., the Chief Technology Officer, Michael Aginsky, is speaking.  On a related note, Michael is starting his own personal blog, Law Firm CTO, soon.  Check it out.  And you can follow him on Twitter at @michaelaginsky.  Another note, my friend David Hobbie is sitting next to me (and typing much faster), so he probably has better coverage than mine at his Caselines blog.  Check that out, too.  Finally, please forgive any typos because I am creating this post at the conference to get it out quickly.

Here are some interesting points from the presentation:

  • Email filing is an important aspect of the new system.  How to get attorneys to file their emails in to the document management system (DMS) has been difficult.  iManage 8.5 should help to do that.
  • Budget – how to justify the cost of this type of project in this economy. For some, the cost is not too significant.  Also, the offset of eliminating a lot of paper file space makes it worth it.  The cost savings from email management issues makes the project worth  the expense.
  • Indexing the documents took much less time on 8.5 than on other systems.  The IDOL indexer is much faster than the previous Interwoven system and apparently faster than competing systems.
  • Document accessing performance: there is significant improvement in time for accessing documents.
  • Search: search results come back more quickly.   Full text searching is much better and more precise.  Some are even seeing documents that they didn’t even know they had (this can be risky – especially with documents that should be locked down).  The results are “almost instantaneous.”
  • Matter-Centric Design: firms are taking guidance from other firms that have been recognized for their MCC designs.   Minimal and simple folder structure seems to be preferable among the panelists.
  • User adoption — Buy in from the top is important, and e-discovery issues are also a driving factor.  The firms are essentially requiring that their users adopt the DMS and use it.  The project is seen as a strategic initiative, and it is therefore required by all users.
  • Deployment: most firms are deploying to small groups (sometimes admin groups) first to test it out.  Firm-wide deployment will be done later.
  • Advice: test, and don’t under estimate IDOL – it needs more attention than the predecessor – Verity; don’t under estimate hardware needs and staffing needs in terms of expertise; early adopter training was helpful, but it only scratched the surface, more training will be necessary.

LawyerKM :: Knowledge Management & Technology for Lawyers and Law Firms

Bringing E-Discovery In-house (LegalTech NY Coverage)

I attended LegalTech New York and took some notes from Wednesday, February 4, 2009.    They may be a little rough, so please forgive any typos.

From the conference:  Session title:  Bringing E-Discovery In-house

  • Operate in the most efficient and cost-effective way with external counsel
  • Minimize objections from opposing counsel
  • Create an effective working relationship between legal and IT professionals
  • Recognize and address risks
  • Identify necessary tools and when you need to use them
  • Capitalize on potential savings
  • Identify trends in the marketplace

Jason R. Baron, Director of Litigation, National Archives and Records Administration

Will Robberts, CEO, Kempton Advisors, Former President, Livenote (division of Thomson-Reuters)
Tom Tigh, President, SuperiorGlacier
Christopher A. Byrne, Esq., Christopher A Byrne, Esq., P.C, Former Assistant Director, FDIC’s Division of Liquidation
Stuart W. Hubbard, Attorney, Schiff Hardin LLP
Johannes C. Scholtes, President / CEO, ZyLAB North

My notes from the presentation:

One goal of the panel is to help legal types and tech types to better communicate and understand each other.

The panel was impressed that Judge Facciola talked about concept searching in his keynote address this morning.

As Judge Facciola said, it is critical for lawyers to keep up on the technology around e-discovery and to understand it.  It is no longer an option.  You simply cannot litigate these days without knowing about e-discovery.

Cooperation among parties (and among lawyers and in-house IT professionals) is key to saving money matters involving e-discovery.

Mentoring: Baron’s rule of thumb is to get the youngest person in the organization to be involved in e-discovery and make sure they know about it.  But maybe this is bottom-up mentoring?  It works both ways; it fosters cooperation and each learns from the other and develops a positive relationship.  And it helps the firm or corporation to save money on vendors.

Communication is difficult between and among IT folks, lawyers, and records professionals.

Among the audience, many want to bring e-discovery in-house.  For those in the audience who have had success with it, a lot has to do with the good relationship between the lawyers and IT.

The Role of Record Management: starting your strategy with RM and records retention policies and planning can help control the costs and time down the road when you become involved in litigation.  With good RM techniques and practices (including ultimately, records destruction) the process is more manageable.  Destruction of records may sound bad, but in reality, it is simply part of the RM lifecycle.

Baron: The Achilies heel of records keeping is people.  The more you have to rely on people, the high the risk and the more work in the long run.  Auto email archiving can be helpful, but it must be done correctly, or else it can get way out of hand.

Knowledge Management: Baron claims that there are tons of KM conferences, but they never invite lawyers.  Of course, I beg to differ.  Case in point: LegalTech NY – there was a whole legal KM track in this very room on Monday.  Readers of this blog know that there are many KM conferences that are focused on law and lawyers are welcome.  Nevertheless, Baron’s point is well taken: lawyers are often ignorant about KM principles and they are important when considering RM and e-discovery.  These are all connected.

Most companies react to things out of fear.  The key is to be pro-active and to address this before the need arises – before the lawsuits.

Search: Johannes C. Scholtes (ZyLAB pitch): Knowledge management search is different than “legal” or e-discovery search.  KM search just wants the best results, e-discovery search is concerned with finding “everything.”   ZyLAB provides the high level of recall.  But with high recall, you get a lot of “junk” and “noise” (i.e. non-relevant search results).

Finding what’s not there: the technology can find words and concepts that are not actually present in documents.

Key: Early collaboration (before the meet & confer) between the lawyer and technologist to develop strategy and how to perform the search.

How can law firms bring e-discovery in house?:  the panel really did not dig into this issue.  I expected more concrete advice on it.  Perhaps someone will ad a comment and augment my notes?

Factors to consider when selecting e-discovery / EDRM vendors: Ownership of IP – the vendors should own their platforms; important product requirements: scalability, open formats and integration with in-house systems, usability, compare coverage with the EDRM model; Cost of software; size of vendor doesn’t matter – focus on competencies and service levels; speak to references.

LawyerKM :: Knowledge Management & Technology for Lawyers and Law Firms

Recommind partners with Anacomp | Knowledge Management

KMWorld reports that “Recommind and business process management company Anacomp have formed a partnership that combines Recommind’s Axcelerate eDiscovery technology with Anacomp’s CaseLogistix litigation support solution. The companies say the integration will facilitate more accurate and insightful litigation review processes and significantly reduce processing times and costs. …”  Read more here.

LawyerKM :: Knowledge Management for Lawyers and Law Firms

Autonomy Acquires Zantaz

From the Press Release:

Autonomy Corporation plc (LSE: AU. or AU.L), a global leader in infrastructure software for the enterprise, today announced an agreement to acquire ZANTAZ, Inc., a global leader in content archiving and electronic discovery solutions and software as a service. The combination of the two companies will redefine information risk management by proactively automating the full spectrum of consolidated archiving, e-discovery, analytics and real-time policy management uniquely in one system. Customers’ information will simultaneously be available in operational systems and consolidated archives, allowing rapid e-discovery and analytics to be run seamlessly across all information sources using advanced methods such as conceptual search, clustering and alerting…

LawyerKM :: Knowledge Management for Lawyers