Discovery: Electronic and Social Media
guest authors: Kirk C. Stange, Esq. and Rebecca Terry
Technology has become such an integral part of a daily life. Since the way people communicate and receive information has changed, this has had a dramatic effect on litigation. Electronic discovery is becoming more prevalent and critical to a successful outcome in a case. For this reason, it is critical that a paralegal educate themselves on the use of electronically stored information ("ESI") in litigation to be effective.
Some sources of ESI a paralegal should have a working knowledge of are as follows:
Home and Work Computers
In the past, paralegals may have inquired about computers for their value as an asset or simply as a piece of useful property that each party wanted to retain. Now, a paralegal needs to ask about what the computer contains because computer can contain valuable information just like a filing cabinet. In recent years, the storage on a personal computer has increased dramatically. External hard drives and flash drives can increase the storage space and make it portable.
While the laws in every jurisdiction may vary, home computers are generally discoverable in most litigation where one can conclude that discoverable information is contained in it. Work computers can be a bit trickier. It is important that a paralegal know the facts of their case in order to help their attorney conduct discovery relative to home and work computers.
The use of email by opposing spouses falls within the interplay of wiretapping and electronic stored communication laws. While jurisdictions may vary, the predominant approach seems to be that that emails prior to being sent or once received do not fall within wiretapping statute. This means emails sent between parties in litigation are generally fair game. Subpoenaing internet service providers, however, will typically only generate the sender and recipient of a message, as they often delete this information quickly. It may be possible to get a simple print out of the emails accepted if they can be authenticated by testimony of either the sender or the recipient.
There are numerous software applications out there, commonly referred to as web browsers, which are used to navigate the internet. Common examples include Microsoft's Internet Explorer, Google Chrome, and Mozilla's Firefox. Web browser's track a history of the websites that somebody visits and "Caches it." This means that it stores it so that it does not have to re-look for information if you it the back button. If the client has a right of access to the computer, it can certainly be worth investigating the browser history. It also might an excellent choice for a targeted subpoena.
Cell phones and Tablets
Smart phones and tablets are increasingly becoming valuable sources of information. In the realm of cell phones and tablets lurk two federal statutes: Title III of the Omnibus Crime Control Act 1968-2522 and Electronic Communications Privacy Act of 1986. Together, they prohibit interception of oral and electronic communication without consent of at least one party to the communication.
Historically, the most common application for cell phones was to subpoena the carrier for itemized billing. While that remains useful, the capabilities of these devices have expanded and so have their use. Text messages are increasingly being utilized in court. People are often choosing to communicate through these messages as opposed to the traditional phone call. This has its benefits and it is a written transcript of what previously would have been an oral conversation. You can still subpoena the provider. However, these providers routinely delete text information. A common method employed by clients is taking a screen shot of the message itself, or emailing the entire conversation to the paralegals. Like emails, it is likely that a printout of the text conversation along with testimony from either the sender or recipient will satisfy the authentication requirements of the court.
Social media sites often contain a treasure trove of information. However, what you do not know certainly can hurt you. You need to know what information your client has out there that could harm his or her case. Your attorney needs to have an idea about what possible accounts the opposing party may have out there as well.
The simplest method is of course simply asking the client. Thereafter, you can begin crafting your interrogatories and requests for production aimed at social media content and electronic sources in general. Bear in mind that there can be authentication difficulties. Depositions and requests for admission can also be useful in getting social media information and getting authenticity. Your best bets at obtaining social media evidence, in most cases, are through consent and printouts of the page from persons having general access. This is because subpoenaing Facebook and other social media providers can prove time consuming, costly, ineffective, and may only provide limited information.
Cloud Storage allows for internet based services to provide users with remote access to software, resources, and information stored elsewhere. The computer systems and servers storing the data or applications are often operated by a third party, not the person or company using the resources. Traditionally, companies stored and owned their own data located at specifically constructed data centers. Even if the company or individual leased the space, they at least owned the hardware and data itself. Cloud services change this to where the user no longer owns the hardware they operate. In discovery, the responding party has the burden to preserve, identify, and collect ESI stored in the cloud. It is important that you know the cloud structure and operating methods that your client and the opposing party employs. This will help ensure that you can understand the information given to you and prevent spoliation.
With the use of technology growing more and more in our everyday life, legal professional need to make sure they understand how it works, how people use it, and how to get the information ethically so that it can be used in litigation. Making yourself as comfortable with technology as possible, and the rules related to their admission in court, is vital for a paralegal in this day and age.
Kirk C. Stange, Esq. is a founding partner of Stange Law Firm, PC. Stange Law Firm, PC, is a family law firm with offices in Missouri, Illinois and Kansas. Mr. Stange is licensed in Missouri, Illinois, Kansas and the United States District Court for the Eastern District of Missouri. He received his J.D. degree from the University of Missouri-Columbia. Missouri and Kansas Super Lawyers magazine selected Mr. Stange to the list of Super Lawyers for Family Law from 2015 to present. He is an adjunct professor at Emory University School of Law. Mr. Stange is president of the Missouri Collaborative Institute and a frequent speaker at continuing legal education seminars. He is the author of a chapter in a book through Thomson Reuters (Aspatore Publishing) titled: "Strategies for Military Family Law: Leading Lawyers on Navigating Family Law in the Armed Forces (Inside the Minds)." He released a full-length book through Thomson Reuters (Aspatore Publishing) in 2014 titled: "Prenuptial Agreements Line by Line." In 2015, Mr. Stange authored another chapter in a book through Thomson Reuters (Aspatore Published) titled: "Strategies for Illinois Family Law: Leading Lawyers on Leveraging Alternative Dispute Resolution, Negotiating Alimony and Child Support, and Managing Client Expectations (Inside the Minds)."
Rebecca Terry has been studying and working in the legal field for her entire career. She completed the Legal Assistant Training Program from the Legal Studies Department at University of Illinois at Springfield in 2001. She also received her Bachelor of Arts in Legal Studies and Political Studies, as well as her Masters Degree in Legal Studies from the same institution. She began working for Stange Law Firm, P.C in April of 2008 as a legal assistant working directly for Partners Kirk C. Stange and Paola Arzu Stange. She has worked her way up the ladder from Legal Assistant, to Paralegal, then Office Administrator and is currently the Director of Administration whereupon she assists the Partners in the managing of the offices.
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