S1 E1 | eDiscovery: The Challenges of Social Media (and Other Ephemeral Data Types)
S1 E1 | eDiscovery: The Challenges of Social Media (and Other Ephemeral Data Types)
Introduction
In episode 1, Jennifer Joyce and the Hon. John M. Facciola (Ret.) provide insights on the eDiscovery challenges posed by social media and other ephemeral data.
Topics discussed include, among other things:
What is meant by ephemeral data
Legal and ethical duties, including the duty to preserve ephemeral data
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I asked our guests to “tell us a little bit about themselves, what they do, and how they got there.”
“I’m a washed-up Magistrate Judge. I worked as a United States Magistrate Judge in the District of Columbia for 17 glorious years. I’ve been involved with information technology for a long time, including those 17 years, and I’ve written many opinions upon it and participated in a couple of books about it as well. I teach at some school in Washington, DC. I teach at Georgetown Law, where I teach evidence, contracts, constitutional law, and a special course called “Information Technology and Modern Litigation,” which I guess is a pretty good summary of my interests.”
“I am a Senior Manager with Ernst and Young. I focus primarily on information governance and eDiscovery. And I have been in this field for about 15 years, so I’m really happy to be here today. I’ve frequently come across ephemeral data and social media through the course of my career. So I’m excited to explore this with you all today.”
I would add that Jennifer is a Certified Fraud Examiner (CFE) as well as a Certified Information Privacy Manager (CIPM), and Judge Facciola serves on the Advisory Board of Georgetown Law’s Advanced eDiscovery Institute and on the Faculty of Georgetown Law’s eDiscovery Training Academy.
What is eDiscovery?
I asked our guests what is meant by “eDiscovery.”
Hon. John M. Facciola (Ret.)
“Well, up until a relatively recent amendment, the Federal Rules of Civil Procedure did not even define a document to include ESI. So that’s how far the legal system was behind the world. When we talk about ESI, we mean, data generated or created by the use of a computer. It becomes of legal significance, because it is now expressly made discoverable by the Federal Rules of Civil Procedure.”
And when I asked Judge Facciola whether most discovery at this stage is eDiscovery, he responded:
“It’s hard to imagine any other kind of discovery. I understand that any given year 98% of all the communications on the face of the earth are digital. As a result, nearly all of the information involved in the justice system is in electronic format. I don’t know of much other kind of discovery, at least in terms of a production by a party. Obviously, we still have depositions and things like that, but it’s really taken over. Particularly in the business cases where it’s about the only discovery there is.”
I asked our guests where this area was “heading in the next year.
Jennifer Joyce
“I’d add [to what Judge Facciola said] that I think additional technology and advances in the current platforms will be underway, particularly for business use.
You could have a personal account with a certain application for communications with your friends and family, non-business related, but I think that there will be an increase into those platforms to help support some of the business processes, particularly around retention of records, legal preservation, other types of compliance requirements. I think that’ll come as well. Then the other thing that that I’m seeing already, and I think will continue, is just sort of a coming together of a lot of the different cross functional teams within businesses, including legal, technology, compliance, to really understand the technologies they have, how they bring it in, how they govern it, so that they have that holistic view and to manage those risks together, as opposed to, I think, what has previously been a little bit of silos. I think that trend is coming and I think we’ll see more of that.”
I asked our guests for one “actionable, monetizable takeaway” for our listeners.
Jennifer Joyce
“I made the joke during our prep that you should go start your own ephemeral messaging or social media network, but I think we’re a little saturated right now.
I think one of the things that someone could walk away with today is if you are an in-house legal professional, or if you are outside counsel, really do some research and familiarize yourself with the technology that’s available, that your colleagues and/or your clients may be using. I think that’s one thing that’s a fairly quick way to get abreast of what’s out there and help you serve your clients or your colleagues.”
Hon. John M. Facciola (Ret.)
“To the lawyers out there, it’s now long past due to increase your technical competence, which is now part of your ethical responsibilities under rule [1.1 and comment 8 to that rule;] a lawyer must keep abreast of the benefits and dangers of the new technology. It’s no longer optional. It is no longer an excuse to say, gee, Judge, we didn’t keep that stuff because I didn’t know what that WhatsApp thing was. My grandchildren use that, but I don’t. This is a time where you cannot delegate to someone else, the fundamental requirement that you understand this stuff. I grow tired of saying this, but the world keeps changing and lawyers will be of service to the society only insofar as they keep up with that society’s technological developments. That’s bankable. The proof is in the pudding. Those are the lawyers who are attractive to the clients. Why did you go to a lawyer for advice when he doesn’t know what you’re talking about?”
I asked our guests if “a student or someone more junior would like to do what you do or get into your area, what advice would you give them?”
Hon. John M. Facciola (Ret.)
“To young people who are considering a career in law, I would tell them, the wisest advice would be to attend Georgetown Law school. We now have 70 courses, can you believe that, 70 courses about the intersection of law and technology. Now that, obviously, it’s not only my employer, but it’s also my alma mater, but being objective as possible, I can say I don’t know of a law school worthy of the name that’s not doing this.
Whether it is in the classroom, curricular activities, and so forth, this is where the world is. So young people doing this might want to do a couple of things. As I tell my grandsons, if you don’t know how to program, you probably want to take a course in Python or something like that, just so you get an idea of what computers are all about. From that point on, see if you can develop some expertise, but more importantly, when you get to law school avail yourselves of these opportunities. One of our students is a remarkable young man, he’s what we call our tech scholars who come to the law school with experience or a background in computer science. While he was at the law school, he showed the United States Senate how to hack into a voting machine. As you can imagine, he’s not having trouble finding potential employers. You simply have to commit yourself, this is the world you want to live in. And this is where lawyers are. You may not like that, you might want to see yourself as the next Clarence Darrow well, good for you, but clients have needs and you’re gonna have to fill those needs.”
Jennifer Joyce
“The first advice that I would give is to explore related certifications. I think certifications are a great way to understand the subject matter and sort of give yourself an overview of what’s in the area before maybe investing in a four-year degree. They also allow you to really stay on top of things. So different certifications are emerging in all sorts of different related information governance functions. There’s lots of technology specific certifications, there’s broad privacy and information governance. So I think that’s a great way to sort of get involved and get kind of up to speed in the area. The other thing I would say is the most successful people that I’ve seen in the legal technology and sort of compliance space are those who understand business, business processes, information systems and information environments, as well as emerging technology. Being able to navigate the conversation between a lawyer, an IT professional, and a business individual is really critical to success in this environment.
I asked our guests to “recommend an article, book, blog, website, talk, or other resource” for our listeners.
Jennifer Joyce
“The Sedona conference recently published a commentary on ephemeral messaging that’s been out for public comment for a few months now and I think the team is getting ready to release that. I was a member of that drafting committee and it does talk about a lot of what we discussed today, certain guidelines around use of outlines of potential business risks as well as benefits and sort of the tensions that exist within this space.
I think it’s a great way to learn a little bit more about this area. I think there’s some great webinars and other types of virtual events that are going on right now and obviously, those are great for a lot of reasons, to be able to watch a pre-recorded session. EY is putting out a legal compliance and technology series, as well as several law firms and other types of practitioners that really talk about what we’re talking about today, law, technology, and how it’s all coming together.”
Hon. John M. Facciola (Ret.)
“I agree that Sedona is unique in what it does and that is a worthwhile place to start. There are several excellent blogs out there, which are run by lawyers. There are magazines such as Law and Technology. There are ways to use Lexis, Westlaw, and Bloomberg to tag stuff, new cases that are coming out that will bring to your attention. That’s also true of Casetext, which I think is free for most people. I think you have to do some digging, but once you do even a minor amount of digging, you’ll be almost overwhelmed how much there is and then you become selective of it. By the way, I don’t consider this, you know, hard duty or torture. I really enjoy reading in this area. Whether it is, I guess, show what a nerd I am, my favorite magazine is the Massachusetts Institute of Technology Tech Review and I look forward to it coming. Even I can understand some of it.”
Jennifer Joyce authored a piece in November 2021 entitled “Why information governance is more important than ever for privacy”. The piece states, among other things:
“As a starting point, organizations should consider creating a data inventory that identifies the types of data that are most critical to the organization, require special handling or protection, or are required by law or regulation. Inventories can then be used by companies to develop classification frameworks to identify these key data types across the enterprise.”
