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Tweets And Status Updates Meet The Courtroom: How Social Media Continues To Be A Challenge For E-Discovery In 2011

By Nadine R. Weiskopf

According to a survey from Arbitron Inc. released in April 2011, the percentage of Americans age 12 and older who have a profile on one or more social networking websites has reached almost half (48 percent) of the population-double the level from three years ago (24 percent in 2008). The study also revealed that consumer use of social networking sites is not just a youth phenomenon. While nearly eight in ten Americans in their teens (78 percent) have personal profile pages, almost two-thirds of 25- to 34-year-old adults (65 percent) and half of 35- to 44-year-olds (51 percent) also now have personal profile pages.Moreover, these social media sites receive a lot of attention from users. The Arbitron® study found that 30 percent of Americans age 12 and older, who have a profile on at least one social networking website, use those sites "several times a day" as compared with only 18 percent one year ago. Simply put, social media has become a part of mainstream daily behavior.

For litigation professionals, the social media explosion is more than a cultural phenomenon; it is simultaneously creating unprecedented opportunities and challenges in the pursuit of electronic evidence. On the one hand, social media presents an exciting new tool in the arsenal of judges and lawyers seeking to acquire relevant electronic data. At the same time, the unique nature of social networking websites is frustrating the ability of lawyers and electronic discovery experts to gather information they know is crucial to their cases. 

More Social Media Use Means More Electronic Evidence

There is a very simple principle fueling the increased attention from litigation professionals when it comes to social media and electronic discovery: any medium through which people interact and express themselves is a medium that may need to be reviewed for potentially relevant information in litigation discovery. 

Just consider the staggering number of users of social media platforms. In July 2011, Facebook® announced they now have more than 750 million active users worldwide and Twitter® now has nearly 200 million users who send out more than 1 billion "tweets" per week. Of the Top 20 most visited U.S. websites in 2010, eight of them were social media sites.

What's more, social media is actually beginning to make in-roads as a leading avenue for business communications. A 2010 study by Burson-Marsteller found that, of the Fortune Global 100 companies, 65 percent have active Twitter® accounts, 54 percent have Facebook® fan pages, 50 percent have YouTube® video channels and 33 percent have corporate blogs. And according to the technology research firm Gartner, over the next four years, social networking services are predicted to replace email as the primary vehicle for interpersonal communications for 20% of business users. 

The upshot of this trend is the erosion of the distinction between "email communication" and "social media communication" that we have come to draw in recent years, creating a much wider universe of potentially relevant communications to survey during electronic discovery.

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Nadine Weiskopf is director of strategic planning for litigation software at LexisNexis, where she is responsible for developing and executing strategic plans for various service and software lines. Prior to joining LexisNexis in 2006, she was a litigator at Jeffer, Mangels, Butler & Marmaro, and other West Coast law firms. Weiskopf earned her law degree from the Seattle University School of Law and her undergraduate degree from the University of Washington. She can be contacted at

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