Written Discovery: Re-Thinking the Definition of "Documents" in the Social Media Age

The social networking era presents attorneys with new challenges that directly affect client representation.  Law dealing with electronic discovery obtained from social networking sites is currently in a state of flux, and attorneys need to be familiar with which types of electronic data are discoverable. The answer is not always clear.

What is clear is that information stored on social media sites is becoming increasingly critical in litigation.  What may have once been a communications medium primarily used by youth is now a mainstay of business communications.  New sources for potentially discoverable social media information include Facebook profiles and messages, Twitter “tweets” and direct messages, LinkedIn profiles and messages, information on Google+ and countless other social media services.

While there may be complications in compelling discovery from some of these sources, at a minimum the definition of “documents” used in written discovery requests, as well as the specific text of requests for production, should specify that the information sought includes these categories of information.  Before discovery even begins, parties should ensure that litigation hold letters sent to their own clients as well as opposing parties also specify that these categories of social media information are likely to be relevant to the disputes in a given case and that they must be appropriately preserved (and preservation of social media is another emerging field—something that I will cover down the road).

To date, there are no new discovery rules that specifically govern social media.  Old rules are being applied to new technology, and the approach of the Courts has generally been to treat social media information the same as other electronic data obtained for discovery purposes.  Federal Rules of Civil Procedure 26, 30, and 34 apply, and in effect broaden the definition of paper documents to include social media information as discoverable electronic data.

FRCP 34(a) was amended in 1970 to include discovery of data compilations.  Dramatic growth in the type and volume of electronically stored data resulted in further amendments to Rule 34 in 2006, to more clearly define discovery of electronically stored information (“ESI”) as being the same as discovery of paper documents. Rule 34(a)(1) is expansive, and is intended to be broad enough to cover the types of ESI available in 2006, and flexible enough to cover future technological developments. Rules 26(b), 26(c), and 34(b) provide guidance on whether and in what form ESI should be produced.  Therein lies the rub -- social networking sites contain a potential treasure trove of discoverable electronic data – but when does this type of data fit the traditional definition of the term “document” and what factors come into play in making such documents admissible evidence?  Lawyers and Judges are only just beginning to navigate this complex realm of discoverable information.

Two key issues are at play when it comes to discovery of ESI from social networking sites. First, what right to privacy do users have when personally expressing themselves in this new area of communication?  Second, because the type of data available on social media can be easily manipulated, what steps should be taken to authenticate data obtained from social media?  Answering those questions and meeting the criteria set forth in the Federal Rules will bring us closer to defining the term “document” as it relates to discovery of ESI from social media.

My next post will address the issues of privacy and authentication of social media discovery.  The courts have held both for and against protecting a users’ privacy, and have suggested that discovery of ESI from social networking sites be held to a higher standard, given the ease with which it can be manipulated.

Written Discovery Requests: Preliminary Statements and Objections

This post is part of my litigation checklist.


Responding to discovery requests can be time consuming but requires considerable care.  If you’ve been diligent in developing and strategically executing your discovery plan, responding to discovery requests is much easier.  As you make your way through the process, it’s essential to keep in mind some potential pitfalls:

-        If written response to discovery is not made timely, any objections you may have, including claims of privilege, may be waived.

-        If a written discovery request is proper, do not withhold evidence or facts that are favorable to your case.  Failing to produce such information may preclude you from using it at trial. When responding, be sure to produce all information that you have or that can be reasonably obtained.  

-        Don't delegate the drafting of discovery requests to  your client.  They likely do not fully understand the language that is customarily used to respond to discovery requests, or the vital importance of a careful responses and objections, and it is incumbent upon you to make sure this is properly handled in your discovery responses.

Responses to written discovery requests normally start with a preliminary statement and objections.  While much of this is boilerplate, and I am not a fan of preliminary statements that run several pages, it can be helpful to set up preliminary objections to provide a fall-back in the event you fail to make a specific objection to a discovery request that becomes and unanticipated disputed issue at a later date.  Additionally, well-crafted preliminary statements and objections can facilitate shorter and more pointed responses to specific discovery requests, actually saving time and space in the long run.

A template saves time and is customizable to the needs of the case.  Following is some suggested wording: 

GENERAL OBJECTIONS

1.              Plaintiff objects to Defendant’s Interrogatories, Requests for Production, and Requests for Admission to the extent that they incorporate or set forth definitions,  instructions, or requirements that attempt to impose upon Plaintiff burdens and obligations beyond those contemplated by the Colorado Rules of Civil Procedure.  Plaintiff will respond as required by the applicable provisions of the Colorado Rules of Civil Procedure and any purported instructions, definitions, requirements, or requests to the contrary will be disregarded.

2.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek information protected by attorney-client privilege or work product doctrine.

3.              To the extent any Interrogatory can be interpreted as requiring Plaintiff to identify or produce any document or set forth any information which is in the possession, custody, or control of Defendant or otherwise, that has been available to or is otherwise not in the possession of Plaintiff, or is equally accessible to Defendant,  Plaintiff objects hereto.

4.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek documents or information not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence.

5.              Plaintiff has not completed discovery, investigation, or preparation for trial in this matter. Accordingly, documents and information are provided without prejudice to Plaintiff’s rights to make further objections and present additional information and documents which are hereafter discovered or which further discovery and investigation may indicate are relevant to this action and called for by Defendant.

6.              These general objections apply to each and every one of the following responses and objections, and failure to repeat an objection in response to a specific Interrogatory, Request for Production, or Request for Admission shall not be deemed a waiver of these general objections.

These General Objections are precisely that – general.  In particular, the blanket objection to attorney-client privilege and attorney work product should only be seen as a fallback position, and the contingent "to the extent" phrasing likely will not suffice--it's best to specifically object to each instance where there are responsive materials protected by privilege or work product.  It is generally still necessary to object to a specific interrogatory, RFA, or RFP.  The objection must be applicable to the case, stated clearly and concisely, and supported by legal authority.  And while a Pulitzer Prize has never been awarded for an objection to a discovery request, a judge is likely to take note of clearly-stated, fully-supported objections, and will appreciate the careful analysis and attention that you have given to your response.

Responding effectively to requests for discovery can require many hours researching cases that support your position that a discovery request is overbroad, burdensome, vague, oppressive, subject to attorney-client (or other) privilege, or not likely to lead to admissible evidence. To this end, in the coming weeks I will be writing a series of articles that will address some of the common objections that are made to discovery requests. Hopefully this information will help make the task less cumbersome and daunting, and will assist you in tailoring your objections to some of the most common discovery issues.   

Jeff Vail is a Denver, Colorado business litigation attorney at The Law Office of Jeff Vail LLC.

Litigation Flowchart

I'm working on assembling a flowchart for civil business litigation in Colorado state and federal courts, which will eventually link to associated checklists.  Here's the first draft:

Twombly Pleading Standard in Colorado State Court

Does the revised pleading standard set forth by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), apply to pleadings in Colorado state courts?  This is a particularly important question as adoption of the Twombly standard could substantially alter the terrain for motions to dismiss in Colorado...

The short answer is that Twombly has not been adopted by Colorado state courts--at least not at the appellate level, yet.  As of April, 2011, only one Colorado state appellate court opinion has cited the recent US Supreme Court opinion in Bell Atlantic Corp. v. Twombly, and that case is Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo. App. 2008).  Sonitrol is anything but an endorsement of Twombly--it is a “but see” cite included as contrast to the quotation of the Colorado pleading standard of complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove facts in support of a claim that would entitle it to relief. Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo. 1999).  (Note that Sonitrol was decided before Iqbal, in which the Supreme Court expressly extended the Twombly standard to all federal complaints).

Ultimately, Sonitrol neither adopted nor rejected Twombly.  Accordingly, it is uncertain whether Colorado will eventually adopt Twombly.  In my opinion, however, it is likely that Colorado will eventually expressly adopt Twombly (or some similar standard).  A growing body of case law is developing at the federal level applying Twombly, and the kinks are being gradually worked out.  Most importantly, there are several persuasive arguments in favor of the Twombly standard, especially in light of the courts' backlog, the skeptical view toward frivolous litigation, and the general atmosphere of tort reform.

Already, at the trial court level, Twombly is being used with some success--I have personally referred to Twombly as persuasive authority to support a motion to dismiss, and the motion was granted.  While it is certainly not binding precedent at this point, I think courts are both persuaded by the reasoning behind Twombly and its progeny and are concerned that Colorado appellate courts could adopt some version of Twombly at any time.  Accordingly, where possible, courts will look to build a "double hull" into their rulings on motions to dismiss to ensure that they are appropriate under either standard.  For the careful practitioner--on both Defense and Plaintiffs' side--it is important to understand and apply this tension when briefing a motion to dismiss.

Finally, when drafting a complaint in Colorado state court, it is certainly wise to consider Twombly if there is any possibility that the case will be removed to federal court,

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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on http://www.twitter.com/jeffreyvail.

Corporate Disclosure Statement per F.R.C.P. 7.1

This post on drafting the Corporate Disclosure Statement required by F.R.C.P. 7.1 is part of my Federal Litigation Checklist.
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Checklist:
- F.R.C.P. 7.1 requires the filing of a disclosure statement by all nongovernmental corporate parties
- The filing requirement is simple:
  -- Identify any parent corporation
  -- Identify any publicly held corporation owning 10% or more of the party's stock
  -- Or, if no such parent or corporation holding 10% or more exists, say so
- The disclosure statement must be filed at the time of the first appearance or filing by the party, and must be updated "promptly" if any of the disclosed information changes
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Thoughts & Best Practices:
- While the corporate disclosure statement may seem like a trivial administrative filing, it can have important ramifications.  For example, the failure to file a corporate disclosure statement may permit a parent company that should have been disclosed to be added after the deadline for adding parties.
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Sample Corporate Disclosure Statement
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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on http://www.twitter.com/jeffreyvail.
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This post on filing a Corporate Disclosure Statement as required by F.R.C.P. 7.1 is part of my Federal Litigation Checklist approach to litigation knowledge management and litigation strategy.

Federal Litigation Checklist

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is an overview of procedural issues and motions in Federal Court civil lawsuits.  Where possible, the following procedures and checklists apply rules and case law applicable in the United States District Court for the District of Colorado.  As each of the following checklists are completed, I will link to them from the text below.
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- Complaint, Summons & Cover Sheet
 -- Pleading Jurisdiction
 -- Pleading Venue
 -- Twombly Standard
- Corporate Disclosure Statement
- Entry of Appearance
- Answer
- Motion to Intervene
- Motions to Dismiss
- Motion to Compel Arbitration
- Motion for Rule 11 Sanctions
- Motion for Protective Order to Stay Discovery
- Motion for Protective Order (General)
- Case Management Order
- Discovery Requests
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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on Twitter @jeffreyvail.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

Domestication of Foreign Judgments in Colorado

This Checklist on the domestication of foreign judgments is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  When you have obtained a judgment from outside of Colorado against a Colorado resident, you must domesticate the judgment in Colorado before you can proceed to execute on the judgment (attempt to collect).  Fortunately, in Colorado the domestication process is relatively simple:
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Checklist:
- In Colorado, the domestication of foreign judgments is governed by the Uniform Enforcement of Foreign Judgments Act, C.R.S. Section 13-53-101 et seq.
- The court filing fee is $166 per judgment to be domesticated (note:  a single judgment against multiple judgment debtors, jointly and severally, counts as only one judgment)
- Draft a pleading styled Notice of Filing of Foreign Judgment
- Include as an attachment an authenticated copy of the foreign judgment
- Include as an attachment an affidavit including (1) the name and last-known postal address of the judgment debtor(s); (2) the current postal address of the judgment creditor; and (3) the name and current address of the judgment creditor's Colorado attorney
- The clerk of the court should send notice of this filing to each of the judgment debtors listed, however this notice requirement can also be met by filing proof of mailing, by certified mail, notice of the filing and the judgment to judgment debtors
- 10 days after the filing of the judgment (not receipt of the notice by the judgment debtors), efforts to collect or execute on the judgment in Colorado courts may commence
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If you have a judgment to domesticate in Colorado, contact Jeff Vail at The Law Office of Jeff Vail LLC.  Our checklist-driven approach improves efficiency and allows domestication of judgments for a very reasonable fixed-fee, inclusive of filing fees and expenses.
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This Complaint Checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.