New language was inserted into Rule 1 of the FRCP that both courts and parties are responsible for just, speedy and inexpensive litigation. The theory being that judges who believe parties are using e-discovery as a way to prolong litigation and build up an opponent's expense can cite this new Rule 1 as a means of correcting the behavior.
Proportionality : Not for behind cooperation on the list of judicial priorities is proportionality — the concept that e-discovery costs for both parties should be in line with the value of a case. However, many in the legal community wish the changes here went even further. To learn about current e-discovery case law and the need-to-know rulings so far in , register for Exterro's complimentary CLE webcast airing on August 19, E-Discovery Case Law Review.
Get the latest content and resources. Exterro is your complete solution for managing data across litigation, compliance and privacy obligations. Get a free demo. This site uses cookies. Read our policy. Many legal teams lack the technical knowledge and skills necessary to navigate the tricky shoals of e-Discovery, resulting in significant and unnecessary legal costs, according to a recent survey of federal judges.
From a practical standpoint, this means corporate counsel must improve their e-Discovery knowledge by understanding more efficient ways to collect and preserve electronically stored information ESI. Facciola advises that both in-house and external counsel need to answer the following questions:.
The risks of ignoring e-Discovery issues in the early stages of litigation can lead to irreversible damage, such as destroying data that should have been preserved, said Joy Conti, chief judge of the Western District of Pennsylvania, who participated in the survey.
Loss of data can occur if a company experiences a routine changeover in its computer systems, for example, and the hard drive holding the data is destroyed. Additionally, e-Discovery mistakes commonly occur during the preservation and collection stage, the judges warned.
In particular, mistakes occur when legal teams fail to implement procedures to ensure that all relevant data is preserved and collected. Miscommunication between internal team members is another common cause of e-Discovery problems.
The majority of communication nowadays happens over e-mail, Conti added. The report also explored potential ways that corporate legal departments can cut down on legal costs. Source: Exterro. Under Rule d in the Federal Rules of Evidence, if privileged documents are inadvertently produced, one party can ask the other to return that information.
I guess IP logs for my account do not belong to me. In the terms of service for Facebook, it clearly states that all data uploaded to a Facebook page belongs to the owner of that page. But what about information I delete on my Facebook page? If Lester deleted it, could Facebook retrieve it? In the Lester case the experts determined 16 photos were deleted but they did not state in the court papers I read which 16 photos were deleted.
However, you understand that removed content may persist in backup copies for a reasonable period of time but will not be available to others. In the world of computer forensics, this says to me that Facebook has the ability to retrieve this information, assuming it has permission from the owner of the account. Whether Facebook would undertake this effort is another question and I wonder why they even put this in their TOS.
It seems like a potential nightmare for them. This is what happened in Crispin v. Audigier when the defendants served a subpoena on Facebook and it was successfully quashed by plaintiff. It is also clearly stated on Facebook:. Specifically, the Stored Communications Act, 18 U. As I stated in my earlier post, no matter what option one chooses to capture ESI, the method should be vetted and the resulting information should be validated to ensure all potentially responsive information is being captured.
Do not rely on the statement by Facebook that their tool is to be used for electronic discovery purposes. Once a user deletes information, can it be retrieved by the user? According to Facebook, the answer is:. Archiving a message hides it from your messages view, while deleting a message permanently removes the entire conversation and its history.
I tested this out on my own Facebook page and deleted an email thread. Once deleted, I could not find a way to get it back. However, when I asked my friend to respond to the deleted thread, the entire thread once again appeared in my message area in Facebook. This makes sense, since this is how I would expect it to work in an application like Outlook.
This means that Facebook messaging is like any other email application. This opens up a whole new source of ESI for discovery. What about the claim on a post I read recently about all of the information Facebook knows about its users?
Here, an individual requested Facebook to send him all his content: Please note that this is an account based in Europe and there are different rules Facebook must abide by for European based accounts. Meaning, fat chance getting Facebook to do this for a U. The European arm of Facebook, based in Dublin, Ireland, was obliged to turn over this information, as they had to follow a European law that requires any entity to provide full access to data about an individual, should this individual personally request for it.
The important part is in bold. Chats deleted over a year ago? So where is this information being stored? This says to me that Facebook is retaining this information somehow, somewhere. So it certainly may be possible to get this information back after it is deleted and it is relevant to a criminal or civil matter. Is there no way to permanently delete your account and messages? I have tested this many times and was even the case in the Lester v. Allied matter. Lester, on advice from his counsel, deactivated his account but was able to re-enable it allowing him to delete the 16 photos.
I was able to find on Facebook, a way to permanently delete your account. Even if you do delete your account, what about the messages you sent to others? What lies in their e-mail accounts and Facebook pages? Facebook is typically accessed through a browser or an app on a smart phone and there may be remnants of deleted ESI on the device used to access the Facebook account.
One of my friends is getting a divorce and he deactivated his Facebook account. He did this after discussing it with his attorney because he did not want his wife or others poking around on his site. Currently, neither party is requesting information from Facebook, but deactivating ones account may be prudent in some situations.
It is the ultimate form of preservation, like locking your FB account in a cement box.
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