From the Vault: e-Discovery 101: Twitter MySpace Away on Facebook

[This is the 1st time I've retrieved a post from the archives.  It was my 28th, from February 4th, 2009.  The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway.  Maybe people just like the title.  I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]

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I've been looking at Twitter, MySpace and Facebook recently…

"I hate my job!"  "I don't want to do this anymore!"  "I pay my staff too much!"

Who wrote this?  Attorneys!  I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday.  Hello???  You do know this stuff may be discoverable, right?

Since it's fast approaching, here's a President's Day story for you…

An underling wrote to a General – who would go on to be President of the United States – regarding an act of treason.  The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.

The General was not amused.  In his order authorizing the execution, he decided to 'send a message' when he sent the message.  His order contained two words:

"So do."

The underling got the message.  Upon execution of the order, he sent a follow-up to the General:

"Done."

In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story – in some variation – actually occurred.  My recollection is that the missive was sent to General Washington during the American Revolutionary War).

Are you getting the message?

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Everybody's seen this on TV – the Miranda warnings.  I'm adopting two of the four Miranda rights as our new e-discovery mantra:

You have the right to remain silent.  Anything you say can and will be used against you in a court of law.

You may be dealing with an adversary who has deep pockets.  What do you think happens the moment a dispute – or threat of one – occurs?  In the old days, they'd hire a private investigator to gather data on the principals, their attorneys, their contacts, heck, even their pets! 

Now, they just do a web search.

There's an old saying; if we could be convicted for what we're thinking, we'd all be in jail!  Forget about 'conviction' for a moment.  Anything you say, no matter when you said it, may be fair game in court to show bias, prior inconsistent statement or a host of other possibilities.  You are creating a record – possibly permanently – of your thoughts.  If you think that deleting them makes them go away, it doesn't.  They can still be recovered in many cases – by someone like me.

If you are operating under the notion that this is personal – and professional litigation is separate – think again.  Anything that can be used to create a profile of how you might carry out your professional duties may be fair game.

Paranoid?  You should be.  You have to be your own filter.  Before you post, ask yourself whether you're OK with the concept that anyone on earth might see it – forever.  If the answer is yes, go ahead.  Post it.  Otherwise, keep it to yourself.

This is e-discovery 101.  Common sense.  We all possess it; we just have to execute.

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