The Sedona Conference has recently released an updated, July 2018 public comment version of its 2012 Primer on Social Media.
The original Primer on Social Media provided guidance on handling social media in the context of corporate governance and litigation. Dramatic changes in social media platforms and technology, as well as the related rules and laws governing their use, spurred Working Group 1 on Electronic Document Retention & Production of the Sedona Conference to update the publication.
The public comment version provides guidance for addressing the most common discovery challenges associated with social media. It provides an overview of the emerging technologies for social media, and the legal considerations in various contexts and stages of the discovery process.
Although social media is a dynamic field with ever-shifting technological considerations, the guidance focuses on two familiar concepts in approaching e-discovery challenges: cooperation and competency.
"Lawyers are therefore advised to either outsource the technological expertise, or to “stay abreast of ongoing technological and legal developments to ensure continued understanding of the issues surrounding discovery of social media."
First, the Working Group urges parties to cooperate early and often when confronted with novel social media issues “to develop reasonable steps for identifying and handling difficult social media preservation and collection issues.” Even if discussions between counsel are ultimately unsuccessful at a Rule 26(f) discovery conference, the parties will have at least “framed the issues for further consideration and possible resolution by the court at the FRCP 16 scheduling conference.”
Second, the Working Group reminds lawyers of their ethical duty of competence, which includes keeping current with “the benefits and risks associated with relevant technology.” Lawyers are therefore advised to either outsource the technological expertise, or to “stay abreast of ongoing technological and legal developments to ensure continued understanding of the issues surrounding discovery of social media.”
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