Electronically Stored Information (“ESI”) is simply digital data that has been created and communicated. The focus in litigation has pivoted along with the shift in the nature of ESI from emails and basic text to things like audio or video recordings, text messages, and social media. Difficulties arise for companies trying to comply with litigation hold requirements because information can now be hidden intentionally or unintentionally due to the complexity of the volume of information. Coupled with this complexity of data, the rules of the game have recently changed which have enhanced penalties for companies failing to comply in preserving the ESI. Here are 3 issues to consider when evaluating the obligations under the changing landscape:

I’ve got so much to do, I don’t have time to sit down and be sad.”—Norma McCorvey

Technology exists to reduce the overall data once it is collected. The emerging issue in litigation under the rule changes is the proper way to reduce such data. Sometimes paying less up front can turn to more legal fees in defense of decisions made in such reductions. Accordingly, here are some things to think about when trying to limit the scope of data:

  • Keyword searches. Work with counsel to identify the proper key words before running searches on data limitations. The attorneys bring great legal knowledge, but need help from the people involved in the communications to best catch the relevant or privileged information. 
  • Document key terms and rationale. Counsel should track the key terms and context for identification of such terms. This is something that will change over the course of data collection and review of the data. Continue checking in and consulting with counsel on the scope of such terms and decisions. This document is increasingly used in discovery conferences for purposes of defending the decisions made from attack.
  • What if the search fails? Keyword searches without results may indicate lack of good faith performance of their discovery and legal obligations. Challenges surrounding ESI are constantly made in litigation and can get expensive to defend. The best defense in such cases is properly documenting the process and preservation of the data. See United States v. O’Keefe, where the court found that expert testimony would be required because determining the adequacy of search terms is a “complicated question involving the interplay . . . of the sciences of computer technology, statistics and linguistics.”

“In three words I can sum up everything I’ve learned about life: it goes on.”—Robert Frost

Instead of three words, what about summing it up with one symbolic representation of emotion? It used to just be a simple smiley face “:)” or a heart “<3” sent on early computer systems—and now the sharing of human emotion is exponentially more complicated each passing year through the addition of even more images, like a surprised cat (🙀), or a primate covering its eyes (🙈). Emojis are the new language of our culture, almost everyone uses them. While they have become prolific, consider the following in the context of defending legal proceedings:

  • Overt threat or merely self-expression? In a recent Supreme Court decision, Elonis v. U.S., the issue was whether postings by a man threatening several people were protected free speech or “true threats.” In this case, it was violent rap lyrics with an emoji similar to: 😛. The argument was that this emoji meant that the threats were not serious. The Court found that the emoji meant there was a lack of intent as required by the criminal statute.

            This is one of the many emerging decisions interpreting emojis in the context of high stakes litigation. When unsure of whether to use an emoji, the best approach may be to think about whether you want to be on the stand testifying about what you meant by the image and what you think the image means. Certainly something to think about the next time you want to send

 

 

“We can put that check in a money market mutual fund, then we’ll re-invest the earnings into foreign currency accounts with compounding interest aaaand it’s gone.”

—Bank Clerk to Stan Marsh, South Park (2009)

 

            Like Stan’s hundred-dollar check, the content sent by social media may disappear into the ether. The first thing that likely comes to mind when thinking of content that disappears after you get it is Snapchat. With the application, photos and videos are not saved (locally), and disappear after a few seconds after the receiver opens the photo. Competitors of Snapchat include Cyber Dust and Confide.

  • Uncertain territory. Various tribunals have encountered problems because these companies are all about not leaving a trail of user content. Companies should have policies in place about the nature of content shared on these platforms for work purposes and communicate them to counsel. These are certainly landmines for potential sanctions or penalties when things have gone bad.
  • Has it really disappeared? A subpoena for transitory information like Snapchat “snaps” will not necessarily work. A subpoena grants access to account information, email addresses, phone numbers, etc. but not meta data. For meta data (data about the data of the messages), a state or federal search warrant is needed – quickly because it can be permanently gone within thirty days.  Bottom line, be cautious and document efforts in attempting to collect this information.
  • What to do? As a business, there exists software that can be installed on company phones to control and capture this information. Use of transitory software like Snapchat can also be prohibited. Overall, the best approach is to be proactive and communicate with counsel frequently about this sensitive high stakes area.

About the Author

Dan Spicer is a third-year law student at Mitchell|Hamline School of Law in St. Paul, Minnesota. He is currently an extern at Loop Legal in Minneapolis—a business boutique.  Dan has experience in arbitration, intellectual property, and legal research/writing through his current work at National Arbitration Forum.