e-Discovery and Social Media?

I met the Honorable Lee Rosenthal from the US District Court for the Southern District of Texas in December. She and Larry Stuart discussed “The Future of Litigation and the Impact of e-Discovery on Your Business” at Rice University. Judge Rosenthal is on the Board of Governers at Rice and chairs the Judicial Conference Committee on Rules of Practice and Procedure. The committee supervises the rule-making process in the federal courts and oversees and coordinates the work of the Advisory Committees on the Federal Rules of Evidence and of Civil, Criminal, Bankruptcy and Appellate Procedure, including amendments to the Federal Rules of Civil Procedure.

Many interesting topics were discussed. The following points provide a framework for understanding eDisovery as it relates to document retention efforts:

• The topic of e-discover is fraught with anecdotal information. Consequently, the Federal Judicial Center (FJC) conducted survey research to understand the impact of technology on the rules associated with e-discovery. (The statistics quoted here were attributed to the FJC.)


• “Information is intensely durable and intensely fragile”.


• Due to changes in technology, the rules around e-discovery have been changed more than any other on the books.


• 70% of cases with an e-discovery component experience no problems in implementing current rules or driving to a reasonable conclusion.


• Less than 50% of federal cases have discovery.


• Only 1/3 of documents subject to discovery are electronic.


• Having a responsible e-discovery, retention, and destruction policy is imperative. Ten years after an incident, you should be prepared to explain why data is not available.


• “Rule 16 (c)” pertains to pretrial conferences. These “meet and confer” opportunities are where legal council meets with the judge and discusses what is reasonably subject to discovery. However, in may not be customary to leverage Rule 16 in all districts. Rosenthal encourages getting the court involved and use Rule 16 – even where it is not customary to do so.

Judge Rosenthal suggested the US federal court viewed a responsible e-discovery, retention, and destruction policy as key. Responsible document retention soberly considers relevance. Her recommendation is to decide early on what media (social or otherwise) has a place in data retention strategy and be prepared to describe and defend that policy – even years after the fact.