Block Your Valuable Brand from .XXX

XXX Sunrise Period for Non-Adult Industry Trademark Owners to Begin the 7th of September

The launch of the new top level domain .XXX is drawing near at which time .XXX domain names will be available for registration with the ICM Registry through accredited registrars. The introduction of .XXX is pertinent not only to the individuals, businesses and organizations currently engaged in the adult sponsored community but to all intellectual property holders with trademark rights.

The .XXX Registry is providing an opportunity for trademark owners (not involved in the adult entertainment industry) to apply to opt-out of .XXX and protect their valuable brands from cybersquatting in the .XXX space. This “Sunrise Period B” of fifty-two (52) days scheduled between September 7, 2011 and October 28, 2011, will allow trademark owners to block the registration of their brand in the .XXX domain. In short, trademark owners may opt-out of .XXX by reserving names identical to their existing registered trademarks effectively barring any potential person or entity engaged in the adult entertainment community from registering a .XXX domain name for that particular mark. A registered trademark is required and submitting an application does not guarantee that your trademark will be blocked by the registry.

However, a successful application to block a .XXX domain name registration will eliminate the domain from the .XXX registry for at least ten years (for a one-time fee of $225 per domain name plus attorney time to prepare the application). The blocked domain will then resolve to an informational page stating that the domain has been reserved and further prevent other interested parties in acquiring and/or using it. Once the Sunrise period ends, if a brand owner hasn’t taken advantage of the opportunity to block its trademark from the .XXX registry, all members of the adult sponsored community will have the ability to register .XXX domains, even if those domains include a valuable or well-known brand. Other rights protection mechanisms will be available (such as the Uniform Dispute Resolution Policy (“UDRP”)), but proactively participating in the Sunrise period may be a more cost-effective and pro-active approach.

© 2011 Bracewell & Giuliani LLP

IQPC’s 11th eDiscovery Summit – April 27-29, 2011 San Francisco, CA – Save Big if Registered Before April 1st!

The National Law Review is a proud media partner for IQPC’s 11th eDiscovery Summit – April 27-29, 2011 San Francisco, CA

IQPC’s 11th eDiscovery Summit features hands on sessions and practical instruction to bring back to your eDiscovery teams. You will engage with IT and legal focus groups to candidly discuss anticipated push back issues, observe how different roles within your company approach imminent litigation and put bridging the gap strategies into practice.

It is no secret that you want to reduce the cost of eDiscovery, yet how do you know if you are paying a reasonable price for ESI processing and review? Do not miss this unique opportunity to learn about outside the box pricing structures and benchmark with your peers to gain a realistic picture of fair pricing for electronic information management.

Why attend the 11th eDiscovery Summit?

  • United States District Court Judges share their experiences with companies committing costly electronic discovery mistakes
  • Bridge the gap between IT and legal through a practical exercise with IT and legal focus groups
  • Learn practical steps to create a solid cross-functional eDiscovery team fostering communication and effective workflow between departments
  • Gain valuable metrics to assess the repeatability and defensibility of your eDiscovery procedures
  • Maximize the benefits of social networking and cloud computing without compromising security and increasing risk
  • Earn CLE Credits! Find out more

Registration, Location & Details…..

  • April 27 – 29, 2011 The Hyatt Regency San Francisco, CA

  • Save Big on Registration – if you sign up prior to April 1st
  • For More Information and to Register – Please Click Here:

New Guidelines for Preservation of Electronically Stored Information "ESI" Released; Federal Court Rules that Metadata Subject to FOIA

Recently posted at the National Law Review by Bracewell & Giuliani – some news about Delaware’s Chancery court’s recent publication of  Guidelines for Preservation of Electronically Stored Information and  Judge Shira A. Scheindlin’s  ruling  that metadata is “an integral or intrinsic part of an electronic record, and, consequently, part of the public record that must be produced by the Government in response to Freedom of Information Act (FOIA) requests:  

In an effort to advise parties to a litigation, the Delaware Court of Chancery released last month its Guidelines for Preservation of Electronically Stored Information. The publication of the Guidelines is timely in light of a decision released late last month in Victor Stanley, Inc. v. Creative Pipe, Inc., Civil No. MJG-06-2662 (D. Md. Jan. 24, 2011), where defendants were ordered to pay over $1 million in sanctions for the willful loss and destruction of electronically stored information (ESI).

As a preliminary matter, the Guidelines advise litigants to take all reasonable steps to preserve ESI that is potentially relevant to a litigation and within their possession, custody or control.  This requires the parties and counsel to “develop and oversee a preservation process.” Key to the preservation process is identifying potentially relevant sources of ESI, i.e. custodians and devices, and enacting a litigation hold. Although there is no single definition among the State and Federal Courts for a litigation hold, the Guidelines advise that, at the least, it entails developing well-written instructions for the preservation of ESI that are then distributed to all custodians of potentially relevant ESI.

Just as important is the timing of the litigation hold.  Various courts have found that the duty to preserve potentially relevant documents occurs once litigation is “reasonably anticipated,” not once litigation has commenced. As a result, theGuidelines recommend that, to the extent a litigation hold has not been disseminated before litigation has commenced, counsel should instruct their clients to do so quickly and “to take reasonable steps to act in good faith and with a sense of urgency to avoid the loss, corruption or deletion of potentially relevant ESI.” While the Guidelines note that this may not be sufficient to avoid the imposition of sanctions if potentially relevant ESI is lost or destroyed, the Chancery Court “will consider the good-faith preservation efforts of a party and its counsel.”

Counsel is well-advised to reference the Guidelines in light of the significant increase in the number of motions and awards for e-discovery sanctions. See Dan H. Willoughby, Jr. et al., Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010). In fact, in the past six years, there have been over five cases where sanctions exceeded $5 million, with one leading the pack at $8.8 million. See id. at 814-15.

As noted above, defendants in Victor Stanley were recently ordered to pay over $1 million in sanctions for the willful loss and destruction of ESI. See also Sanctionable Conduct Involving E-Discovery, Bracewell & Giuliani Legal Advisory, dated Sept. 28, 2010. Magistrate Judge Paul W. Grimm found defendants’ acts of spoliation to be so “extraordinary” as to treat them as contempt, pursuant to Federal Rules of Civil Procedure 37(b)(2)(A)(vii). As such, failure to pay the ordered amount within 30 days will subject the owner of the defendant corporation to up to two years of jail time. Not surprisingly, one of the many actions cited by the court that defendants failed to take: enforcing a litigation hold.

In other e-discovery developments, Judge Shira A. Scheindlin of the Southern District of New York, and author of the instructive Zubalake series of opinions, ruled this week that metadata is “an integral or intrinsic part of an electronic record,” and, consequently, part of the public record that must be produced by the Government in response to Freedom of Information Act (FOIA) requests. Nat’l Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488 (S.D.N.Y. Feb. 7, 2011). Although the issue had been addressed by several state courts, this was a matter of first impression for a Federal Court. 

Noting that different types of metadata are inherent to different types of electronic records, Judge Scheindlin determined that “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily producible.'” (Emphasis in original). She further determined that the onus is on the requesting part to specifically request the metadata. However, Judge Scheindlin found that it was “no longer acceptable” for a party to produce “a significant collection of static images of ESI without accompanying load files.” Citing to Federal Rule of Civil Procedure 34 as a source that should inform FOIA productions, Judge Scheindlin’s ruling will likely carry equal weight in the context of civil discovery. 

© 2011 Bracewell & Giuliani LLP

Yes, It’s Data Privacy Day

Here’s some news – it’s Privacy Day !  The National Law Review was alerted to this news by Emily Holbrook of the Risk Management Monitor – read on: 

It may surprise you, as it did me, to learn that today is Data Privacy Day, an “international celebration of the dignity of the individual expressed through personal information.” But Data Privacy Day also highlights the need for individuals to protect their data and how they can go about doing so.

There are many organizations out there that aim to help individuals protect their personal information and help businesses comply with data protection laws and regulations. The Online Trust Alliance is one such organization, whose mission is to create an online trust community, promoting business practices and technologies to enhance consumer trust globally. They recently released their “2011 Data Breach Incident Readiness Guide” to help businesses in breach prevention and incident management.

According to their newest guide, the true test for organizations and businesses should be the ability to answer key questions such as:

  1. Do you know what sensitive information is maintained by your company, where it is stored and how it is kept secure?
  2. Do you have an incident response team in place ready to respond 24/7?
  3. Are management teams aware of security, privacy and regulatory requirements related specifically to your business?
  4. Have you completed a privacy and security audit of all data collection activities, including cloud services, mobile devices and outsourced services?
  5. Are you prepared to communicate to customers, partners and stockholders in the event of a breach or data loss incident?

With the White House, members of Congress, Commerce Department and the FTC calling for greater privacy controls and breach notifications, self-regulation by businesses is becoming more and more important.

Google, one of the supporters of Data Privacy Day and the initiatives of The Privacy Projects is hosting a public discussion on privacy later this afternoon with representatives from the Electronic Frontier Foundation, the FTC and the National Institute of Standards and Technology scheduled to attend. If you can’t stop by Google’s DC office for this event, don’t worry — it will be captured on video and posted to YouTube soon after.

Risk Management Magazine and Risk Management Monitor. Copyright 2011 Risk and Insurance Management Society, Inc. All rights reserved.

Want your website to get noticed? Break the rules!

From Moiré Marketing Partners, the National Law Review’s Business of Law Guest Bloggers this week, Sean Leenaerts provides some interesting insights on different things to consider for legal websites:

Every time I hear someone in marketing or advertising talk about “best practices” for website design, I roll my eyes.

Now granted, many of the do’s and don’t’s of web design have merit. They’ve been tried, tested and proven to work. And I believe that certain best practices such as ease of navigation, making good use of white space, ensuring that site text is easy to read and building for fast loading times are sarcosanct. But I also believe that best practices are helping to hold marketers back.

The problem I have with best practices is that while they are there to guide everyone in website design, they also cause everyone to look pretty much the same. Adherence to best practices tends to create a formulaic, templated approach to website design. The logos, colors and images on various sites may differ, but they mirror one another in their composition–i.e. logos in the upper left, navigation at the top, copy centered or aligned to the right, vertical scrolling, etc. They’re design conventions that definitely work, but make for few standout websites.

“Okay,” I can hear you saying, “that’s all well and good. But I’m a law/accounting/financial services firm. My site has to be functional, and it should stand out because of my message, not because it looks cool and creative.” All true. But in order to read your message, your site has to be noticed first. While I’m not advocating that professional services firms push the boundaries of convention just for the sake of being different, there are a few rules you can break (or at least bend) in order to make your site stand out from the competition.

Go Horizontal

While usability studies show that most website users prefer to scroll and read text vertically, most of those studies were conducted years ago prior to the ubiquitousness of touch screens, widescreen monitors and many other developments we now take for granted. For touch screens like those on the iPhone/iPad, horizontal navigation is the preferred form of navigation because it’s more ergonomic to move your hand from side to side than up and down. In the case of monitors, screen resolutions have gotten better. We used to design for 1024 x 768 screen resolutions. Now, many screens have resolutions that are 1440 x 900 and they’re much wider, which means that viewers get more real-estate horizontally than they do vertically.

I also think–and this is strictly my opinion–that our brains are better wired to consume information horizontally. Maybe it’s because we’ve been doing it that way offine for so many years. Books are read with a horizontal flip, galleries place paintings and photographs alongside each other, and most of our world is organized horizontally rather than vertically–i.e. our houses are next to each other and we move through the world in a mostly linear fashion.

Chart a New Course

Navigation buttons and links should always be easy to find, but do they always need to be at the top or along the sides of the page? And do they always have to be “buttons”? Unconventional navigation–as long as its easy to find and figure out–has the ability to engage the audience and keep them on your site. A good example of navigation that breaks with traditional design and works well is from the web design firm Hello Goodlooking in Helsinki, Finland:

Here, the navigation buttons are centered on the page and move to the sides when you click on them and open a window. They’re easy to see, easy to understand and make the site simply downright fun to navigate.

Shift Your Perspective

Right-aligned page content is often not seen in a world of centered or left-aligned web pages.  Whenever I come across a page that is aligned uniquely, I have to pause and take a second look. It’s a simple (and safer) way to look unique without having to deviate from other conventions of website design.

Be Bold

Using reversed type, multiple typefaces and unique fonts is generally frowned upon in website design. Yet sites that do all or some of these things tend to grab a lot of attention–and not necessarily for all the wrong reasons. And you don’t have to be a kooky design firm to do it. Morrison Foerster is a law firm whose website is truly unique within the industry. No images, just type–and mostly reversed type, at that. Big, bold headlines. A conversational tone. And don’t even get me started on their careers site, which has to be one of the best in any industry. Most law firms make claims to be different and innovative. MoFo’s website backs it up.

Sometimes breaking with best practices is worthwhile. In fact, I’ll go so far as to say that it’s the only way to truly stand out. Striving for innovative design and a better way of web browsing has brought about some great changes in the last decade. Being different to be better is a perfect example of when the rules of best practices should be broken.

Copyright © 2011 Moiré Marketing Partners, Inc. All rights reserved.

When Is Research Misleading?

Sue Stock Allison, the Managing Director of The Brand Research Company, as Sister Company to Greenfield / Belser Ltd.  was recently the National Law Review’s recent Business of Law Guest Blogger.  Sue shared five key things for Law Firms to keep in mind when performing opinion research.  

Sometimes, when it comes to opinion research, what you see is not necessarily what you get. For instance, focus group moderators can inadvertently (or purposely) create bias among recipients. Or when questioned about buying habits or intentions, people may tell questioners what they want to hear, rather than what they actually feel.

I can’t count the number of times I’ve cautioned against considering all research valuable or even accurate. But there are ways to ensure that your findings are sound when undertaking research among your clients, your organization members or your markets.

Here are five tips for making sure the research your firm is using is useful:

1. Know your Goals

I know you’re thinking, “Of course, we need goals!” but, alas, research can be initiated for nutty reasons. My personal favorite: “Everyone else is doing it.” That everyone else is doing it may make initiating a new study an excellent recommendation, but you still must match your research goals to your business goals. Do you define success by a measurable return on the research investment, or do you just want to touch your most loyal clients? Are you trying to guide or justify a specific marketing expenditure or, more loosely, gauge awareness in a particular market? Knowing what you want to achieve is crucial to obtaining the data you need. Detailing the specific information you want to know, even using hypothetical statements of finding, can help you to make your objectives clear. In this case, the cart (what you wish to carry away from the research) truly comes before the horse.

2. Fully Define Your Target Audience

Do you put stock in those general market studies that “rank” your business better or worse than others? Syndicated studies are great gossip and provide fodder for your website’s homepage

(“We’re #1 in reputation for excellence for the third straight year!”), but there is limited value in being considered number one for anything if those who provide the ratings do not purchase or even influence the purchase of your services.

When conducting research, or using research conducted by someone else, you need to ensure that respondents include individuals whose opinions you really need to know. Do you want to know what your top 25 clients think, your clients with the highest potential or your clients who seem to be fading away? Are you looking for guidance from prospects for a specific service, in a specific geographic area, or from a certain type of business? If existing research was conducted among exactly the right group of individuals–excellent! If not, you’ll need to conduct your own research to get what matters to you.

3. Select the Best Methodology

As popular as they are, focus groups are one of the most misused research methodologies. They are a qualitative research method, statistically invalid, which necessarily makes them ill-suited for drawing conclusions about habits or actions. Whether you conduct one session with 10 individuals or 10 sessions with a total of 100 individuals, they are never conclusive. Focus groups are, however, an excellent way to come up with ideas about proclivities or intent that can later be tested with quantitative surveys. Focus groups can help you discover undetected problems with an ad campaign, potential challenges of a new service offering, or the usability of a website design. But when you want to understand what is most important among a number of choices, what really drives client loyalty, or how to best position your business in a market—these objectives require a quantitative method that can provide the metrics you need.

4. Ask the Right Questions the Right Way

Another common problem with focus groups and other forms of research is how easily respondents can be led to particular responses, and how hard it is for them to accurately assess and report their own motivations. When you develop your discussion guide, in-depth questionnaire or survey instrument, you need to make sure the questions are not leading, that your respondents are not primed to answer in a particular way. (In fact, when conducting focus groups, I often ask participants to write down their initial impressions before discussion even begins.) For telephone or in-person interviews, make sure your interviewers are skilled in the techniques that will bring even subconscious motivations to the surface.

5. Interpret with Caution

How do you know if your findings are truly reliable? Even if you’ve clearly laid out your goals, comprehensively defined your target, picked the best methodology, designed an effective research instrument, and used excellent interviewers, the results can still be misleading if your interpretation of the findings is flawed. Reliable interpretation begins with proper analysis of the data, which requires understanding how the target population was selected and ensuring that your resultant data includes the information needed to feed your conclusions. Perhaps the most common problems are conducting quantitative analyses with too few responses, or having a response rate that is too low–both of which beg the question: How do the non-respondents differ from those who are included in the research?

So, is research misleading? It certainly can be, but by using these guidelines, you can take the necessary steps to ensure that your research will more accurately provide the information you need.

©2011 Greenfield/Belser Ltd.

 

eDiscovery & Social Media

The National Law Review’s featured guest blogger last week was Meredith L. Williams of  Baker Donelson provides some great insight on discovery issues related to social media sites: 

Social media is not going anywhere, so we must learn to live with it and use it to our advantage and within the confines of the newly articulated and always changing rules.  If ever a doubt, one can look to the Nielson Report (“What Americans Do Online: Social Media and Games Dominate Activity,” Aug. 2, 2010) that states two-thirds of the internet population utilize social media sites.  Internet users now spend more than 10% of their online time on social media sites, and usage is constantly increasing.  With this rise in social media usage, the issues surrounding ediscovery in the realm of social media data is an important consideration of litigation.

The definition of legal discovery is locating all documents that are relevant to support the litigation.  But how does ediscovery work when the content is not owned or controlled by the business? How does a business preserve data that is outside of its firewall? Finally, how does one seek relevant information held on social media sites?

Social media sites are not like email or word processing documents when it comes to preservation. These sites are operated outside of a business’s firewall by a third party. Data is normally scattered on many sites and connected by many people or custodians.  Finally, the retention policy or schedule of a business does not affect data located on social media sites.   When a business maintains social media pages, it has a duty to preserve the data that may be relevant in anticipated or actual litigation.

Seeking information from social media sites can be difficult at best.  Many times discovery of this data must be gained through consent or authorization of a third party, which only causes an extra, and often expensive, burden.  Each third party is different in how it maintains the data, and each has the right to delete any content for violation of its terms of use policy, at any time. That deleted information could be relevant to litigation.

Unfortunately for businesses, the courts are only beginning to outline the duty of preservation and the right to discover the information from social media sites.  The best line of defense for many businesses is to develop internal policies and training programs to educate all employees of the risks of using social media.  In addition, new software now exists that can aid in preserving data.

Duty to Preserve

The 2006 Federal Rules of Civil Procedure amendments changed the discovery rules to allow a party to request “electronically stored information” within the “possession, custody, or control” of the responding party.  A duty to preserve potentially relevant evidence exists when litigation is “reasonably anticipated.”  In addition, parties who fail to preserve electronically stored information (ESI) are subject to penalties. Social media data fits the definition of ESI; thus, businesses must deal with the issue of preserving and possibly producing social media data that falls under their data retention policy.

Due to the fact that social media sites are owned and controlled by third parties, vendors are beginning to develop technology to capture dynamic web pages for preservation.  The first few companies in this market include Iterasi, Smarsh, Arkovi and LiveOffice.  Additionally, Adobe may be used to capture web images in static format.  These are but a few examples of new technologies that businesses are considering to meet their duty to preserve and produce ESI.

Recent Case Law

Additional issues remain – whether the information on social media sites is considered private, whether it is discoverable and whether it is admissible as evidence.  Recent case law has addressed these as yet unanswered issues.

In Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), the court held that there is a lack of expectation of privacy regarding public postings on social media sites.  The user has the right to select privacy preferences on his social media sites.  Certain settings allow the public to see limited information and authorized, connected individuals to have greater access. In addition, many social media site privacy policies specifically state that certain postings are subject to a weakened privacy expectation.  Courts have generally held that when a user makes information available publically via their privacy settings, there is a lower expectation of privacy and, therefore, the information is discoverable.

Jumping ahead to the current year, we find EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010).  In this case, the court compelled production of relevant content from social media sites.  The court discussed discovery of social media site data as simply “requir[ing] the application of basic discovery principles in a novel context.”  The facts of Simply Storage Mgmt, involved the defendant seeking production of social media site profiles and communications from Facebook and MySpace.  The court ordered the plaintiff to produce the content that was relevant to the case.  The plaintiff argued that requiring such production would infringe on his privacy.  However, the court held that the expectation of privacy is not a basis for shielding discovery.  In addition, the court found that any privacy concern therein was lessened due to the fact the information had already been shared.

Earlier this year, Crispin v. Audigier (C.D. Cal.) (May 26, 2010), brought us a new ruling regarding social media and the Stored Communications Act (SCA).  In this case, the court was reluctant to allow discovery of private social media email communications.   The case involved a copyright infringement claim.  Audigier subpoenas the private social media messages of Crispin.  A magistrate judge disagreed with Crispin’s arguments that these communications fell under the SCA, preventing the provider of the messaging service from releasing private communications, because the social media sites messaging services are used solely for public display.  However, the district court reversed the ruling, holding that Facebook and MySpace allow private message or e-mail services which are separate from the general public posting.  This case held that the SCA protects Facebook and MySpace messages that aren’t publicly available.  Therefore, these messages cannot be subpoenaed in civil litigation.  In addition, the court left the door open for further clarification, noting that “Facebook wall postings and the MySpace comments are not strictly ‘public,’ but are accessible only to those users plaintiff selects.”

On the other side of the country, we find a slightly different ruling with Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010).  TheRomanocourt allowed discovery of an entire social media site with all current and deleted postings.  The court ordered the plaintiff to provide the defendant with access to private postings from two social media sites. The court reasoned that information contradicting the plaintiff’s claims was included on the public sections of the plaintiff’s social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. The court even cited Facebook and MySpace policies, which warn users they should have “no expectation of privacy.”

Even if one is able to surmount the difficult hurtle of obtaining data from a social media site, an equally daunting challenge remains – getting the data admitted.  The main issue with admissibility is authenticity; spam, viruses, hackers and the like make social media sites susceptible to manipulation or fraud.   For this reason, courts have consistently been cautious when admitting social media data. In some cases, judges have become online “friends” with a party in order to authenticate postings, photos, captions and comments. (Barnes v. CUS Nashville, LLC).  Other courts have allowed printed copies with time date stamps to corroborate facts. (Treat v. Tom Kelley Buick Pontiac GMC, Inc.). Finally, some courts have used circumstantial evidence associated with the creation of the data (i.e. metadata and hash tags) to authenticate social media content.  (Lorraine v. Markel Am. Insur. Co.).  Admissability remains  an area of concern as the use of social media data in discovery becomes the norm.

Discovery of Social Media Data

A lawyer must decide early on whether relevant information exists on social media sites.  Within that evaluation, the costs to preserve, collect, review and produce the social media information should be considered.

Start discovery of social media by conducting large sweeping web searches for public social media sites of adverse parties or adverse witnesses.  Many individuals do not lock profiles or use privacy settings; therefore,  all postings, messages, comments, etc. are open to the public.  Preserve the sites with date stamps.

If an individual’s social media sites are set to private, and, therefore, not open to the public, what can a lawyer do?  Many boards of ethics do not allow lawyers to “friend” anyone to gain access to private profiles of information (NY State Bar Association Ethics Opinion 843 (Sept. 10, 2010)). So, instead of friending an individual, use discovery requests.  Start with a document request asking for all postings and messages that are related to and relevant in the litigation.  One can also consider requesting an access wavier to social media sites that allow for complete access to the site.  LinkedIn has a standard wavier located on its site. Finally, ask for all social media identifications used by the adverse party in an interrogatory.  Regardless of what direction taken, social media should be a part of the ediscovery process.

Conclusion

In conclusion, a business should take inventory of what social media sites are being used within the organization.  Then, set policies to help educate all employees of the risks regarding social media usage.  Finally, decide if backup software is needed to help with preservation and production of the business’s own social media data.  Regardless of retention schedule taken with social media, plan to always show the court that you’ve done your best, which is all that is expected.

For lawyers, be prepared to incorporate social media into an edisovery plan.  Start early within the litigation.  Draft standard document requests, waiver forms or interogatories around social media production.  Finally, be aware of the changing legal landscape on privacy, discoverability and admissibility, as these areas will continue to change, more and more rapidly in the future.

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.