Tiger Woods, Facebook and ESI, oh my!

Session: E-Discovery in Small Cases

Moderator: Bruce Olson, President of ONLAW Trial Technologies, LLC

Panelist: Hon. James M. Rosenbaum, United States District Court, District of Minnesota, Minneapolis, MN

Panelist: John Simek, Vice President of Sensei Enterprises, Inc.

Panelist: Hon. David Waxse, United States Magistrate Judge for the District Court in Kansas City, KS


Tiger Woods made an appearance at the 2010 ABA Techshow in Chicago. Well, not literally. During this morning’s session titled “E-Discovery in Small Cases” it was noted that Elin Nordegren’s attorney is working on collecting text messages. Welcome to the wonderful world of e-Discovery.

Know When To Get Help

If you don’t know the difference between operating system metadata and internal metadata all three members of the panel advise you hire a trusted third-party to collect the data necessary for your case. John Simek, Vice President of Sensei Enterprises, Inc., added that if a small firm is attempting to cut corners on costly e-Discovery by simply asking the resident IT staff of the company you are investigating to properly extract ESI (electronically stored information) – don’t. In most cases an untrained e-Discovery IT person won’t understand the evidentiary impact of the data and won’t know how to best preserve the data. In the worse possible scenario the relevant data for your case won’t be collected and s/he might inadvertently damage or corrupt the data collected to the point where it won’t be admissible in court. United States District Court of Minnesota Judge James Rosenbaum said metadata is thought of as “the black box in the airplane…It is not sacrosanct. It can be changed.” And once it is changed, it can be ruled inadmissible.

Social Media and e-Discovery

Can you submit Facebook pages as evidence? Absolutely. Judge Rosenbaum cited the Rules of Evidence 801 d section specifically while giving his nod of approval to accepting social media comments, posts, and photos that appear on social networking sites like MySpace and Facebook as evidence in a case. Making questions like “Do you have a Facebook account?” and “Do you have a MySpace page” a regular practice during intake and monitoring the plaintiff’s and the defendant’s social networking accounts were strongly recommended by the panelists.  For lawyers looking for more e-Discovery evidence John Simek was happy to oblige, he said “Twitter has every single Tweet that was ever made” recorded.

ESI for everyone

United States Magistrate for the District Court in Kansas City Judge David Waxse repeatedly said that lawyers should make a reasonable attempt to become knowledgeable about their client’s ESI. He counseled lawyers to  “narrow down the issues in the case” as their first steps in the e-Discovery process, and cited a PDF with specific guidelines for dealing with discovery of electronically stored information.

For those private practices or small offices interested in DIY ESI, here are some tools you can use that were mentioned by the presenters during the session:

~ by CDLB on March 26, 2010.

4 Responses to “Tiger Woods, Facebook and ESI, oh my!”

  1. […] via Tiger Woods, Facebook and ESI, oh my! « Lextek – Chicago Lawyer’s Tek Talk. […]

  2. […] to get “positive Google juice“. Other presentations addressed topics such as how to preserve ESI and the pros and cons of  ‘cloud’ […]

  3. […] Tiger Woods, Facebook and ESI, oh my! by Chicago Lawyer’s LexTek Reporthttps://lextekreport.com/2010/03/26/tiger-woods-facebook-and-esi-oh-my/ […]

  4. Very good post and links for resources. I can’t emphasize enough how frustrating it is to have opposing counsel object to electronic evidence based upon baseless theories of a lack of authenticity simply because it is electronic. The more caselaw that developes on the issue the easier it becomes to present the court with a list of accepted practices that speak to the issue of authenticity.

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