The definition of “document” in the Civil Procedure Rules of England and Wales is “anything on which information of any description is recorded”. Whatever the precise wording, most common law jurisdictions require something similar.
Lawyers have come to accept that an email or a word file is no less a “document” than its paper equivalent – don’t laugh, this is something which we had to explain not so very long ago. That definition, of course, embraces Facebook posts, tweets, instant messaging, voice records and an ever-growing list of data types “on which information of any description is recorded”.
An interesting article by Roe Frazer, CEO of eDiscovery software provider Cicayda, is called Social media content can tip the litigation scales. It reminds us that there is more to discovery than merely managing conventional data – the purpose of discovery / disclosure is not just compliance with rules and adherence to processes but finding evidence.
Roe Frazer identifies a range of outputs created all day and every day by those from whom discovery / disclosure is expected, and observes correctly that cases can turn on evidence about the person’s location and about times and dates. I wrote about this recently in an article called The cloud for companies and celebs alike in which I suggested that the the photographs of celebrities in the nude might carry information about the time and place of the photograph that was much more damaging than the mere display of naked flesh.
Roe Frazer asks the question So why are lawyers avoiding mining social media facts in discovery, facts crucial to winning, or losing?
One of the reasons (“excuses”, Roe calls them) is that lawyers are fearful of the Pandora’s Box which would then be opened. As the range of discoverable data extends, so the already over-burdensome task of collecting data will become yet more onerous and expensive.
That is undoubtedly correct, and neither Roe Frazer nor I would suggest that all social media about all potential custodians must be collected. The same principles of proportionality apply to these forms of data as to any other, and the lawyer who collects everything is doing as bad a job as the one who never applies his or her mind to the subject at all.
The answer lies in the growing range of software tools offered by Cicayda and others for collecting, filtering and managing this type of data. If you do nothing else, make sure that social media data appears on the firm’s checklist (you do, of course, have such a checklist, don’t you?) of things to be considered when approaching a new case.