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Everything to do with E-discovery & ESI

Around the block-March 8, 2011: Notes on Facebook and Predictive Coding

Posted by rjbiii on March 8, 2011

A few articles of note that affect electronic discovery, forensics, or cyber-security:

Predictive coding has been a hot topic, and at Prism Legal, Ron Friedman posts his thoughts on how it should be handled by courts:

[Courts] should presume that predictive coding is reliable. The burden of proof should shift to predictive coding opponents to show that it is not reliable.” Let the proponents of human review explain to the court why diverging expert views is better than consistent computers.

Agreed. “Relevance” is ultimately determined by the court. In “human review,” a lead attorney formulates a set of guidelines for document reviewers to follow. This formulation is based on his understanding of the case subject matter, the scope of discovery requests or other communications by the opposing party, and any direction he might receive from the court. The attorney’s understanding of relevance is, in theory, based on an honest attempt to obtain an understanding of the court’s definition of “relevance” for the instant matter. The guidelines then sent down to those attorneys reviewing documents is an attempt to accurately propagate this understanding. Obtaining consistency (and of course, accuracy, to the extent that term can be used here) between reviewers is a difficult (and often, costly) process requiring diligence and proper project management.

The larger the review team, the greater the challenge. Predictive coding offers the promise of greater consistency. To test its validity, however, the components that might be scrutinized are: the efficacy of the technology used, any “rules” created that affect the tool’s method of classification, and the methodologies behind any creating “sample” datasets used to “train” the tool on what is relevant and what is not.

EDiscovery map offers a primer in how to collect from EU-based data sources.

There is a serious conflict for US firms with affiliates in EEA countries, when they get involved in civil litigation within the US: On the one hand, Federal and State rules mandate retention and production of all relevant data, even data located outside of the US, with the risk of severe penalties by the Courts in case of “spoliation”, and on the other hand, EU data protection laws (applicable to the EEA) mandate very strict data protection rules for “personal data” of their residents, that seriously restricts processing of personal data and transfer of those data to “non-adequate” countries outside of the EEA, with risks of steep fines in case of transgression.

Continuing on, we’ve argued about this before, but the ABA posts an article explaining why e-discovery is killing legal jobs. Not that I agree with the assessment.

The ACEDS staff takes on the subject of EDD and social media:

One of the important issues involved in social networking evidence is admissibility. The Federal Rules of Evidence require evidence to be authenticated before it can be admitted in court. With nearly everyone having the power to create accounts and claim to be someone else, how can one prove the true identity of a username in court?

To help establish authenticity of information gathered from social media sites and intended for use as evidence, testimony from the person who obtains printed screenshots from the social networking web page should be documented, along with details of how and when the pages were accessed and printed.

I agree with this…but I’m not sure how authentication of social media content differs from that associated with the collection of any other website. On the same topic, we now read of Facebook’s “self-collection” tool, which the company has provided its users:

Now, 500 million users of the most popular social network on the planet (which includes not just individuals, but organizations as well) have a mechanism to “self-collect” their data for their own use and safekeeping. Or, they can “self-collect” for use in litigation. In his article, Craig [Ball] likens Facebook’s download function to Staples’ famous easy button. How can an attorney argue an overly burdensome collection when you simply have to click a button?

Discovery requests for Facebook-related data may become ever more prevalent, if you believe Andre Yee when he says that Facebook is the new internet.

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