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E-Discovery & Web 2.0:. Discovery in a User-Generated, Globally-Distributed Environment By Conor R. Crowley, Esq. COLLABORATING ACROSS BOUNDARIES: Government Records and Social Media NARA E-Records Forum, April 14, 2009. What is E-discovery?.

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e discovery web 2 0

E-Discovery & Web 2.0:

Discovery in a User-Generated, Globally-Distributed Environment

By Conor R. Crowley, Esq.


Government Records and Social Media

NARA E-Records Forum, April 14, 2009

© 2009 Daley Crowley LLP

what is e discovery
What is E-discovery?
  • Refers to discovery of electronically stored information (ESI)
  • If a claim arises, parties have a duty to preserve potentially relevant information

© 2009 Daley Crowley LLP


“We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery.”

Judge Shira Scheindlin - March 2009

© 2009 Daley Crowley LLP

why care about e discovery
Why Care About e-Discovery?

© 2009 Daley Crowley LLP

  • Litigation
    • Civil and Criminal Sanctions
    • Ethical Discipline
    • Damage Awards
    • Spoliation of evidence
  • Investigations
  • Data Privacy
e records are discoverable
E-Records are discoverable
  • E-Records:
    • This term generally reflects a document, regardless of format, that is evidence of conducting state business. For example, a record may memorialize a transaction conducted by the state.
    • A government record that is in electronic form, which could range from email to word processing documents to digital images.
        • See Ready for the Challenge? State CIOs and Electronic Records Issues, Opportunities and Best Practices, NASCIO, July 2008.

© 2009 Daley Crowley LLP

what is esi
What is ESI?
  • Anything stored electronically
    • (e-records and more)
  • Includes traditional records as well as new technologies
    • Web 1.0
    • Web 2.0
    • Web 3.0

© 2009 Daley Crowley LLP

web 1 0


Web 1.0

“In March 1989, Tim Berners-Lee submitted a paper called ‘Information Management: a Proposal’ to his supervisor Mike Sendall. This document, called ‘vague, but exciting’ by Sendall, became the blueprint for the World Wide Web which launched the following year.”

- Gallery: The World Wide Web hits 20, ZDNet, March 2009

© 2009 Daley Crowley LLP

web 1 0 buzzwords
Web 1.0 Buzzwords



Sir Tim Berners Lee

File Servers

World Wide Web






© 2009 Daley Crowley LLP

web 1 0 esi
Web 1.0 ESI
  • Email (corporate and personal)
    • With email attachments
  • Office documents
    • Word processing documents
    • Spreadsheets
    • PowerPoint
  • PDF files
  • Databases
  • Web sites
  • System generated reports
  • Faxes
  • Digital voicemail
  • Contact management system
  • Multimedia files
    • Scanned images
    • Digital photographs
    • Audio
    • Video
  • Tape backups
  • Legacy media

© 2009 Daley Crowley LLP

web 2 0
Web 2.0

“Web 2.0 is the business revolution in the computer industry caused by the move to the Internet as a platform, and an attempt to understand the rules for success on that new platform.”

- Tim O’Reilly

© 2009 Daley Crowley LLP

web 2 0 buzzwords
Web 2.0 Buzzwords




O'Reilly Media

social networking



media sharing

text message



video stream




social bookmarking

lightweight collaboration




online collaboration


AJAX - Asynchronous JavaScript and XML

mobile Internet and devices

© 2009 Daley Crowley LLP

tim o reilly s web 2 0 examples
Tim O’Reilly’s Web 2.0 Examples


© 2009 Daley Crowley LLP

web 2 0 esi
Web 2.0 ESI
  • Instant Messaging
  • Text Messaging
  • Collaboration Tools
    • SharePoint
  • Blogs
  • Wikis
  • Really Simple Syndication (RSS)
  • Videoconferencing & Webcasting
  • Mashups
  • Podcasting
  • Social voting/ranking
  • Social bookmarking
  • Social Networks
    • Facebook
    • Linkedin
    • MySpace
    • Twitter
  • Virtual Worlds
    • Second Life
    • World of Warcraft

© 2009 Daley Crowley LLP


“Barack Obama's presidential victory demonstrated that platforms like YouTube and Twitter

could transform electoral politics.”

Fraser, Matthew and Soumitra Dutta, Yes, CEOs Should Facebook And Twitter

Forbes Magazine (March 11, 2009)

© 2009 Daley Crowley LLP


“Online collaboration will

rewrite how governments govern.”

Change your world or the world will change you

The future of collaborative government and Web 2.0

- Deloitte Report – March 2008

© 2009 Daley Crowley LLP

web 2 0 in government
Web 2.0 in Government

Government 2.0 is already underway, how will you handle it?

-RSS Feeds



-Second Life



© 2009 Daley Crowley LLP

epa rss feed


© 2009 Daley Crowley LLP

white house blog
White House Blog


© 2009 Daley Crowley LLP

peace corps blog
Peace Corps Blog


© 2009 Daley Crowley LLP

other examples
Other examples
  • Wikis
    • Intellipedia (http://en.wikipedia.org/wiki/Intellipedia)
    • 7th Circuit US Court of Appeals (http://www.ca7.uscourts.gov/wiki/index.php?title=Main_Page)
  • Multimedia sharing
    • USA.gov Multimedia library (http://www.usa.gov/Topics/Multimedia.shtml)
    • NASA YouTube (http://www.youtube.com/user/ReelNASA)
  • Podcasting
    • Webcontent.gov (http://www.usa.gov/webcontent/technology/podcasting.shtml)
  • Virtual Worlds
    • ENERGY on Second Life(http://blogs.nature.com/climatefeedback/2007/12/second_life_climate_talks_on_s.html)
  • Widgets
    • FBI (http://www.fbi.gov/widgets.htm)

© 2009 Daley Crowley LLP


Web 2.0

is all about conversation, collaboration and


© 2009 Daley Crowley LLP

  • Twitter
    • Getting in on the conversation
  • Linkedin
  • Collective intelligence or “the Commons”
    • Wikipedia
    • Amazon.com/ ebay /food network user reviews
  • Social bookmarking
    • Digg
    • Delicious
    • StumbleUpon

© 2009 Daley Crowley LLP

  • SharePoint
  • Social bookmarking/tagging
  • Google Docs
  • Slideshare

© 2009 Daley Crowley LLP

  • SharePoint
  • My Yahoo!
  • Google homepage
  • My MSN
  • MySpace
  • Facebook

© 2009 Daley Crowley LLP

how does this impact your agency
How does this impact your agency?
  • Need to know where your ESI is (data map)
    • So you can respond to requests for initial disclosure of ESI when sued
  • Need to maintain a good records retention policy and schedule (make it simple)
  • Need to train your government employees

© 2009 Daley Crowley LLP

web 2 0 in the real world
Web 2.0 in the real world


What are the implications for agency lawyers?

© 2009 Daley Crowley LLP

top 20 websites
Top 20 Websites
  • Top 20 Websites at HitWise are Web 2.0
  • Your employees are using Web 2.0, officially and unofficially

© 2009 Daley Crowley LLP

social networking
Social Networking

© 2009 Daley Crowley LLP

myspace vs facebook
MySpace vs. Facebook
  • 3.2% of all Internet visits
  • 2.57% of all Internet visits
  • More than 175 million active users
  • Fastest growing



© 2009 Daley Crowley LLP

leduc v roman
Leduc v. Roman

Facebook user poked - by the courts

Judge rules man must divulge what he's posted on private social website

March 14, 2009

Canadian decision Leduc v. Roman, 2009 CanLII 6838 (ON S.C.), orders plaintiff in a motor vehicle accident suit to produce relevant pages from private Facebook profile as relevant to loss of enjoyment of life

© 2009 Daley Crowley LLP


Glastonbury Parents Cited For Allowing Underage Drinking At Party

March 11, 2009

Police cite an elementary school teacher and her husband for serving alcohol to minors after photographs of teenagers playing a drinking game during a party at their home appeared on Facebook.Theodore Berent, 46, and Laura Berent, 45, were charged Monday with nine counts each of permitting a minor to possess alcohol.

© 2009 Daley Crowley LLP

state v hause
State v. Hause

Facebook Photo Convicts School Aide of Drinking Charge

February 9, 2009

Underage drinking charges brought from Facebook picture: school resource officer for Springboro Community Schools found on Facebook a picture of appellant with three juveniles holding Smirnoff bottles and other pictures of the night in question

© 2009 Daley Crowley LLP


Guilty verdict on lesser charges in MySpace case

November 26, 2008

Cyber-bullying case involving the suicide of a 13-year-old girl after defendant created a fictitious MySpace profile of a boy, “Josh Evans,” who told her the world would be a better place without her

© 2009 Daley Crowley LLP

instant text messages
Instant & Text Messages

© 2009 Daley Crowley LLP

quon v arch wireless
Quon v. Arch Wireless

Prying bosses get the message; A ruling curbs their ability to obtain employee e-mail and text communications

June 19, 2008

Ninth Circuit found that a public employee (police sgt.) had a reasonable expectation of privacy in text messages sent and received on his employer-owned pager (however there was an informal policy in place)


Twitter is like a cross between Instant messages and Text Messages. It is a method of micro-blogging limited to just 140 characters

you can post your dispatches from your iPhone, BlackBerry or any other mobile device capable of text-messaging on-the-go

© 2009 Daley Crowley LLP


Congress's New Love Affair with Twitter

February 11, 2009

According to Congresspedia: there are 19 Senators and 50 Representatives who Twitter.

© 2009 Daley Crowley LLP

jurors cause mistrials by tweeting
Jurors cause mistrials by Tweeting

Twitter use prompts motion for new trial

March 14, 2009

Juror who used Twitter may cause mistrial in $12 million lawsuit

© 2009 Daley Crowley LLP


As Jurors Turn to Web, Mistrials Are Popping Up

March 18, 2009

Google and Twitter


© 2009 Daley Crowley LLP


The first step in blogging is not writing them but reading them.

Jeff Jarvis, BuzzMachine, 7/10/06

© 2009 Daley Crowley LLP


Blogger unmasked, court case upended

May 31, 2007

Boston pediatrician blogging under the pseudonym “Flea” was outed on cross-examination during his own medical malpractice trial.

Flea had written several posts about the wrongful death trial, including defense strategy and privileged communications.

Flea settled.

© 2009 Daley Crowley LLP

virtual worlds
Virtual Worlds

© 2009 Daley Crowley LLP

second life cases
Second Life Cases
  • Virtual property – “Linden dollars”
  • “With nearly USD$35 million traded between residents each month, the Second Life economy has grown to become one of the world's largest user-generated virtual economies.”

© 2009 Daley Crowley LLP


Second Life's Real-World Problems

August 09, 2007

Second lifer Bragg sued Linden Research for confiscating property worth thousands of dollars when it froze his account over questionable virtual real-estate deals.

© 2009 Daley Crowley LLP


UK Couple to Divorce over Affair on Second Life

November 14, 2008

A woman in Cornwall, England, has filed papers to divorce her husband on the grounds of "unreasonable behavior" after she discovered that his Second Life avatar had been having an affair.

© 2009 Daley Crowley LLP

world of warcraft
World of Warcraft
  • Property Rights: Magical items / Virtual Gold
  • Auction Houses
  • Virtual Theft
  • Florida class action on virtual gold

© 2009 Daley Crowley LLP

wow auction house in stormwind city
WoW Auction House in Stormwind City
  • exterior
  • interior

© 2009 Daley Crowley LLP


Gamer Files Class Action Against "World of Warcraft" Gold Farmer

June 7, 2007

Antonio Hernandez says in his suit that IGE made a "calculated decision to reap substantial profits by knowingly interfering with and substantially impairing the intended use and enjoyment associated with consumer agreements between Blizzard Entertainment and subscribers to its virtual world called World of Warcraft."

© 2009 Daley Crowley LLP

web 3 0
Web 3.0

“The Web is 20 years old this month. The third decade of the Web has started. This means we are officially in Web 3.0 now. Web 2.0 is finished.”

- Nova Spivack, March 13, 2009

© 2009 Daley Crowley LLP

web 3 0 buzzwords
Web 3.0 Buzzwords


automated integration

web guided by common sense


user experience


pervasive adaptability

recommendation agents

greater bandwidth

Sir Tim Berners Lee


semantic ecosystem


individualized content based on user input

open standards

machine learning

social computing


back-end infrastructure

smart applications

natural language search

linked data

© 2009 Daley Crowley LLP

preview into web 3 0 technologies
Preview into Web 3.0 technologies
  • TIVO
  • Pandora
  • mashups

© 2009 Daley Crowley LLP

web 4 0
Web 4.0

Is about connecting intelligences in a ubiquitous web where both people and things reason and communicate together

© 2009 Daley Crowley LLP

web 4 0 buzzwords
Web 4.0 Buzzwords


distributed computing

network initiation

personal distribution networks


Intelligent Web

artificial intelligence

distributed search

natural interfaces




real 3D



© 2009 Daley Crowley LLP

what to do
What to do?

© 2009 Daley Crowley LLP

3 part strategy
3-Part Strategy

© 2009 Daley Crowley LLP

where is your esi
Where is your ESI?
  • Traditional sources
  • Web 2.0 sources

© 2009 Daley Crowley LLP

where is your esi stored
Where is your ESI stored?
  • Inventory your electronic systems
    • E-mail
    • Backup
    • Central Systems/Applications
    • Network Topology
    • Web Content
    • Legacy Media
    • Desktop/Workstation
    • Voicemail/Telephony
    • Cloud Content

© 2009 Daley Crowley LLP

where is your esi stored1
Where is your ESI stored?
  • Inventory Web 2.0 sources controlled by agency:
    • IM communication threads
    • copies of audio conferences
    • archives of corporate Web conferences
    • employee agency-related blogs or wikis
    • agency collaboration sites
    • agency-issued PDAs or cell phones

© 2009 Daley Crowley LLP

creating a policy that works
Creating a policy that works

Policy should be

Firm and transparent about usage and compliance expectations

Policy should accurately reflect actual practice

© 2009 Daley Crowley LLP

awareness and training is key
Awareness and Training is key

Adequate employee awareness and training are key to ensuring new policies and procedures associated with Web 2.0

© 2009 Daley Crowley LLP

thank you

Thank You

Conor R. Crowley



© 2009 Daley Crowley LLP