The Modern Archivist

Is There Any Privacy on Social Networking Sites?

1. The answer appears to depend on your privacy settings and the relevance of the data to a lawsuit.  Here are several recent cases and rules that illustrate the state of privacy on social networks today:
2. 1.  In Crispin v. Audigier, the court held that social network communications are private per the Stored Communications Act** (including wall postings that were limited to friends only) and not susceptible to subpoena.  “Moreover, the information the parties gave Judge McDermott establishes that Facebook wall postings and the MySpace comments are not strictly “public,” but are accessible only to those users plaintiff selects.”  Because the communications were private, the discovery was denied except for those messages/wall postings that are accessible to the public. 
3. 2.  In Sasqua v Courtney, the defendant argued that the plaintiff’s client list isn’t confidential since “virtually all personnel in the capital markets industry that Sasqua serves have their contact information on Bloomberg, LinkedIn, Facebook or other publicly available databases.”    In addition, this case has some fun facts (a family business, an uncle suing his niece and a live demonstration – on the stand – showing how to use the Internet to find prospective clients).  Check out more by reading the whole decision or this blog entry.    This is vastly different from a 2008 UK case that ordered an employee to hand over their Linkedin contacts when they left the company. 
4. 3.  In Romano v. Steelcase, the court ordered the plaintiff to deliver a consent that would allow the defendant to gain full access to the “Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.”   The court issued this ruling mainly because the Plaintiff placed her physical condition in controversy and the pages in question likely contained information directly relevant to her claims. 
5. 4.  The NY State Bar Association recently ruled that lawyers can view and utilize Myspace and Facebook profiles so long as they don’t gain access by ‘friending’ the person.  In other words, if your profile is accessible by the public then it is fair game for any litigation.  Specifically, the new rule states:  “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not “friend” the other party or direct a third person to do so….” 
6. 5. In State v. Huertas, the defendant’s social network postings were used as evidence during the sentencing phase of her criminal case.  The judge noted that the postings showed a failure of the defendant to take responsibility for her actions after she gave drugs to a friend and then failed to seek help as her friend lay dying.    
7. 6.  Lastly, in the case of Cvent v. Eventbrite, the court ruled that public websites (those capable of being browsed by the public) are susceptible to scraping since the information is public (“scraping” is the methodical gathering of data from a website usually done by small programs that travel to the site, gather the data and send it back to the host).  While this is not about a social network, the same principles apply – namely that public information is fair game.  If you want more info on scraping, methods to stop it and the lawsuits around it, please see Eric Goldman’s blog. 

Although it is too early to find many hard and fast rules surrounding social networking sites and litigation, here are ones that are easy to spot:  1) Data from social networking sites is often used as evidence in lawsuits;  2) That data is discoverable (even deleted pages); and 3) Your best bet to quash a subpoena using the SCA is to make sure no information is completely public. 

Or maybe the answer is either to stop using Facebook entirely or just change your name. 

** The Crispin court also provided a nice overview of the cases involving the Stored Communications Act.  Here is a short synopsis from page 13 of the decision:  Viacom International Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) (the SCA prohibits disclosure of information pursuant to a civil subpoena because the Act “contains no exception for disclosure of such communications pursuant to civil discovery requests”); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D. Va. 2008) (“Applying the clear and unambiguous language of § 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsbys’ electronic communications to State Farm because the statutory language of the [SCA] does not include an exception for the disclosure of electronic communications pursuant to civil discovery   subpoenas”), etc.  For more information on the SCA, see this article. 

Related articles by Zemanta

• Deleted Facebook and MySpace Posts Are Discoverable–Romano v. Steelcase (ericgoldman.org)
• Do Your Social Networking Privacy Settings Matter If You Get Sued? (blogs.forbes.com)

Tags: Discovery, e-discovery, electronic records, Employment, records management

Multinational Corporations Beware – EU In-House Attorneys CANNOT Create Privilege

 

In a recent decision, the European Court of Justice confirmed that communications between the company and in-house lawyers are not protected from disclosure or discovery.

London solicitor J. Daniel Fitz, former chairman of the ACC, stated “The ECJ ruling has serious ramifications as it denies in-house attorneys and multinational businesses in Europe and elsewhere the critical legal counsel on competition law matters that companies working in today’s global legalmarketplace require.”  Similarly, the Guardian’s Julianne O’Leary believes that this is an unjustified knock against in-house counsels, who will be unable to do their jobs effectively — that is to provide sound legal advice to their employers. Law.com’s Marcia Coyle agrees in that the ruling is “a blow to multinational businesses”.

The ruling holds that privilege will only be granted pertaining to “independent lawyers,” that is “lawyers who are not bound to the client by a relationship of employment.” 

Specifially, the ruling states: 

1.  Extending privilege requires “the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate… that is to say one who is not bound to his client by a relationship of employment.”

2.  “It follows that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers.”

3.  “[A]n in-house lawyer cannot, whatever guarantees he has in the exercise of his profession, be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence.”

4.  “It follows, both from the in-house lawyer’s economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer.”

There can be no doubt that this ruling will dramatically reduce the abilities of EU in-house counsel to provide legal advice as sure as it will force companies to lean on outside counsel more often.  And for multinational corporations this could also lead to an increase in a new inhouse lawyer position based in New York but focused on EU legal issues. 

Tags: Business, Competition law, Corporation, e-discovery, electronic records, Employment, European Court of Justice, European Union, Law, Lawyer, litigation discovery, records management

Hold on to your ESI…for 18 years?

 

In Takeda Pharmaceutical Company Ltd. V. Teva Pharmaceuticals USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010), a patent dispute between two pharmaceutical companies, the court ordered that the relevant time period for all discovery requests be expanded to include the past 18 years.  Because the plaintiff had conceived of the patent and reduced it to practice 18 years ago, the documents from the entire time period may contain relevant data. On the plus side, the court did order that the parties split the cost of obtaining the ESI from this period.

Specifically, the Court stated:

1. Defendants have shown “good cause” for the production of ESI for a period of 18 years, including that the patent-in-suit (U.S. Patent No. 6,034,239) claims priority to 1996 and ESI relating to the inventive activities, including research, that led to the patent likely well preceded this date. “ESI from this period is critical to many issues in this patent case, including, among others, the date of conception and reduction to practice, potential concealment of the best mode of the claimed invention, obviousness and the inventors’ understanding of the prior art, and the construction of the claim language.”
2. Because plaintiff Takeda has shown that the ESI sought by Defendants for the period predating the five years immediately preceding suit is not reasonably accessible, it is appropriate to require the parties to share in the financial costs of production of ESI. An outside e-discovery vendor stated that performing the necessary tasks (e.g., indexing, restoring, culling, searching, and hosting) would cost approximately $1 million to $1.5 million. These figures do not include the time it would also take for attorneys to review the retrieved materials for relevance and privilege.
3. Here, the ESI sought by Defendants is relevant at least to Defendants’ invalidity defense and may not be available from any other source, but the financial and other burdens on Takeda from producing the requested ESI would be very high. Still, in relation to the importance of the interests at stake in this litigation, including the likely very substantial financial stakes, these costs may be justified.

This case pushes the limits of what the courts consider to be a “relevant” time period for e-discovery requests. Granted pharmaceutical companies experience especially long product development cycles due to rigorous testing and regulation. Nevertheless, companies in other industries have some cause for concern. This decision can have an immediate impact on the length of document retention policies and the utilization of company-wide archiving tools. As storage costs continue to drop, it is possible that more organizations will be holding on to their ESI for ten years or more.

Tags: e-discovery, litigation discovery, Preservation

E-Discovery Challenges of Multinational Corporations

I recently came across an article on www.executivecounsel.com which discusses the challenges faced by multinational organizations when trying to implement a comprehensive approach to e-discovery. According to the article, the sheer size of multinational corporations often presents the biggest obstacles since these companies are prone to frequent acquisitions and are so geographically diverse.  I agree that these are big challenges, but I have seen a few others that were even more formidable.     

After the ability to ingest and search billions of records in seconds is conquered, any good e-discovery system must be able to handle the amazing number of languages used within a single organization and must be able to segregate the enterprises’ data by the organization, jurisdiction and personnel.  Only once those problems are solved can a multinational organization feel free to merge with any company world-wide and not have to worry about the integration of various technologies and privacy levels for each country/subsidiary. 

This is of interest to me since I am scheduled to attend the E-Discovery Seminar for Pharma & Biotech next week and many of the companies in attendance are going to be large multinational pharmaceutical companies who face similar issues.  The ability to scale to any size has been a claim that virtually every vendor in the e-discovery space. But, in reality, when faced with large scale multinational companies, most solutions are unable to handle the billions of documents that must be ingested, searched, reviewed and produced. 

Frankly, reactive e-discovery vendors (or mere point solutions) should be immediately dismissed since they are not up to the task.  First, these guys are outrageously expensive (especially with per gigabyte pricing models) and second, they are far too risky since it is nearly impossible to track down (and preserve) all of the ESI involved on a custodian basis.  Instead these multinationals should implement a truly scalable archive that can provide an audit trail showing what ESI is stored, where the data originated and when it was reviewed/produced to opposing counsel.  Coupled with a powerful search engine, the combination will immediately cut down on costs while eliminating the need for costly and inefficient ESI collections (not to mention enable true early case assessment).    

Handling e-discovery for a multinational is not easy, but the technology to achieve it in a cost efficient and defensible manner is out there. Don’t believe me?  Just ask UBS, Wells Fargo and others! 

Tags: e-discovery, e-discovery search, early case assessment, electronic records