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  1. 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 © 2009 Daley Crowley LLP

  2. 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

  3. “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

  4. Why Care About e-Discovery? © 2009 Daley Crowley LLP • Litigation • Civil and Criminal Sanctions • Ethical Discipline • Damage Awards • Spoliation of evidence • Investigations • Data Privacy

  5. 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

  6. 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

  7. <html></html> 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

  8. Web 1.0 Buzzwords Groupware Hypertext Sir Tim Berners Lee File Servers World Wide Web SQL Websites HTML HTTP links © 2009 Daley Crowley LLP

  9. Web 1.0 was about connecting information sources and getting on the net © 2009 Daley Crowley LLP

  10. 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 • CD-ROMS • Legacy media © 2009 Daley Crowley LLP

  11. 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

  12. Web 2.0 Buzzwords P2P syndication tagging O'Reilly Media social networking CSS podcast media sharing text message RSS folksonomies video stream IM search blogs social bookmarking lightweight collaboration WYSIWYG mp3 wikis online collaboration SaaS AJAX - Asynchronous JavaScript and XML mobile Internet and devices © 2009 Daley Crowley LLP

  13. Tim O’Reilly’s Web 2.0 Examples http://www.oreillynet.com/pub/a/oreilly/tim/news/2005/09/30/what-is-web-20.html © 2009 Daley Crowley LLP

  14. 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

  15. “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

  16. “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

  17. Web 2.0 in Government Government 2.0 is already underway, how will you handle it? -RSS Feeds -Blogs -Wikis -Second Life -Facebook -Twitter © 2009 Daley Crowley LLP

  18. EPA RSS Feed http://www.epa.gov/newsroom/rssfeeds.htm © 2009 Daley Crowley LLP

  19. White House Blog http://www.whitehouse.gov/blog/ © 2009 Daley Crowley LLP

  20. Peace Corps Blog http://www.peacecorps.gov/index.cfm?shell=learn.whatlike.voljournal © 2009 Daley Crowley LLP

  21. 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

  22. Web 2.0 is all about conversation, collaboration and customization © 2009 Daley Crowley LLP

  23. Conversation • 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

  24. Collaboration • SharePoint • Social bookmarking/tagging • Google Docs • Slideshare © 2009 Daley Crowley LLP

  25. Customization • SharePoint • My Yahoo! • Google homepage • My MSN • MySpace • Facebook © 2009 Daley Crowley LLP

  26. 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

  27. Web 2.0 in the real world Cases: What are the implications for agency lawyers? © 2009 Daley Crowley LLP

  28. 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

  29. Number of US Facebook Users Over 35 Nearly Doubles in Last 60 Days © 2009 Daley Crowley LLP

  30. Social Networking © 2009 Daley Crowley LLP

  31. MySpace vs. Facebook • 3.2% of all Internet visits • 2.57% of all Internet visits • More than 175 million active users • Fastest growing MySpace Facebook © 2009 Daley Crowley LLP

  32. 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

  33. 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

  34. 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

  35. 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

  36. Instant & Text Messages © 2009 Daley Crowley LLP

  37. 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)

  38. 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

  39. 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

  40. 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

  41. As Jurors Turn to Web, Mistrials Are Popping Up March 18, 2009 Google and Twitter mistrials © 2009 Daley Crowley LLP

  42. Blogs The first step in blogging is not writing them but reading them. Jeff Jarvis, BuzzMachine, 7/10/06 © 2009 Daley Crowley LLP

  43. 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

  44. Virtual Worlds © 2009 Daley Crowley LLP

  45. 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

  46. 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

  47. 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

  48. World of Warcraft • Property Rights: Magical items / Virtual Gold • Auction Houses • Virtual Theft • Florida class action on virtual gold © 2009 Daley Crowley LLP

  49. WoW Auction House in Stormwind City • exterior • interior © 2009 Daley Crowley LLP

  50. 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