E-Discovery and Social Media: Recap from TLI Litigation Summit, Part II

By Gina F. Rubel
Special to the Legal

In September, The Legal Intelligencer hosted its first annual Litigation Summit in Philadelphia. This blog covers some of the information provided by Peter L. Mansmann, CEO of Precise Inc., who spoke about e-discovery challenges, solutions and trends. He was joined by Erin C. Burns of Roda Nast, Tara Gill Nalencz of Rawle & Henderson and Stuart Clair of Buchanan Ingersoll & Rooney. During the program, I shared some of this information via Twitter with followers of the program’s hashtag. Here are some of the key points:

• Pennsylvania decided not to adopt the Federal Rules for e-discovery, but added language to the rules regarding electronically stored information (ESI).
• The factors in e-discovery in Pennsylvania include: (1) the nature and scope of litigation and complexity of issues; (2) relevance of ESI and its importance in the court's adjudication; (3) the relevance of the ESI; (4) the ease of producing the electronically stored information and whether it is available via less burdensome means; and (5) other relevant factors.
• The reality of social media and litigation is that these issues are less than 10 years old and we have a range of social media that we have to review for discover/e-discovery. It’s a burgeoning area of the law.
• Lawyers must take time to know social media in litigation. For example, don't ask if a witness has a Facebook page for the first time on the witness stand. All of the questions should be asked at the interrogatory and deposition level and then fleshed out well in advance of trial.
• People are getting savvier about how to keep lawyers off their social media pages – and in order for social media content to be discoverable it needs to be relevant. The courts are tackling social media discovery requests and issues regularly.
• Some law firms are creating their own e-discovery departments/business units in order to keep costs down for clients, increase profits and decrease inefficiencies. While this is certainly an option for the larger firms that have millions to invest, it is not really an option for solo, small or even midsize firms, so managing the costs and time associated with e-discovery is critical.
• Cost recovery, cost-shifting and predictive coding are some of the hottest issues in the courts. In recent months, the courts have issued several influential electronic data discovery decisions addressing these issues.
• Various factors may play into a court’s analysis when deciding whether or not to tax e-discovery costs on the losing party in litigation. Those factors include: the volume of discovery requested and produced; the complexity of the litigation; the e-discovery methods used; which parties benefited from those methods; which parties requested the use of those methods; the necessity of the chosen methods; whether the costs were those typically incurred by lawyers or nonlawyers; and the adequacy of documentation submitted to support the defendants’ bill of costs.

Gina F. Rubel is the owner of Furia Rubel Communications, a strategic marketing and public relations agency with a niche in legal marketing. A former trial attorney, she is the author of Everyday Public Relations for Lawyers. Rubel and her agency have won many awards for legal communications, PR, media relations, website and graphic design, strategic planning, corporate philanthropy and leadership. She maintains a blog, is a contributor to National Law Review, The Legal Intelligencer Blog, AVVO Lawyernomics and The Huffington Post. You can find her on LinkedIn or follow her on Twitter. For more information, go to www.FuriaRubel.com.

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