“Welcome onboard,” Oswald Cobblepot says. He’s the Chief Executive Officer of Digicom, a leader in international digital communications and you are the new associate counsel.
This is your first day in the new spot.
Cobblepot doesn’t sit in your office, even though there is a chair. He clearly wants to tell you something. He leans in… “Listen, about a year ago, I started a blog on our external website. I call it Digital Bites! Get it? Digital Bites!” You smile…politely. It doesn’t help that he smells rather fishy.
He continues, “You see, on this site, I would publish about once a week, and the topics would usually be tied to something going on at the company. We have been fairly careful to limit our topics to the same things that are in our press releases. You know, we just wrapped up that whole multi-year SEC investigation, so we wanted to be careful about what we are saying out there. In fact, we have always moderated the comments, just so we could control the message on the site further. In other words, if someone tried to say something bad, we would either delete that comment or we would never let it be posted on the blog. That’s where the problem has come in.”
“You see, last month we got sued in a class action about the deleted comments. Basically, the complaint says that we have been hiding information from our shareholders because we have been deleting truthful comments from the blog – or just not posting them. I have heard of spolcreation or something like that, but I don’t know what we should be doing to prevent it, or what we should say when the other side accuses us of this stuff. I mean, they are looking for these comments which never really appeared on the web. Who keeps those?”
“Give me some advice about the steps we should be considering, but, I have a call in a few minutes, so just give me the high points.”
Then Cobbelpot says, “Oh yeah – I forgot to tell you about this.” You inwardly sigh and wait for Cobblepot to drop the other shoe.
“I was also asked if I have a e-mail retention system in place. I don’t want to do this because if I do then it will cost me hundreds of thousand dollars. I’m not Mr. Moneybags like that playboy, Bruce Wayne. How do you shysters do this sort of analysis? When is an email retention system justified and in what situations?”
You gently push back, tell him you need time to collect your thoughts and you promise him a memo. Cobblepot nods then waddles out. You turn to your computer and start a new document. What do you say?
You have just finished your memo for Cobblepot. It’s almost lunchtime, so you pull out your peanut butter and jelly sandwich, but as you look up, Edward Nigma is in your doorway.
You’ve heard things about him and his penchant for riddles. He’s also your Chief of Security. “Do you have a minute to read this email?” You think, no, but say yes. “Oh, let me just show you.”
Next thing you know, your sandwich has been tossed aside, and he’s at your computer, digging through your inbox. He clicks on a message from him. It opens to show a short message and an attachment, a video. “The video is surveillance footage from the garage, level G3 to be specific. It’s footage from last night, just watch this.”
He clicks a button, and the video comes alive showing two shadowy figures breaking in to two cars. They reach inside and take something from each car and then take off running. “I don’t know who these people are, but I think they are the same people who assaulted Pamela Isley last week in the same parking garage. Even though she works with us in Security, Pamela’s filed a formal complaint and is just being plain mouthy about how we have ‘mishandled’ her situation. She says she is putting us on notice. What does that mean? I think she’ll sue, but me and the other guys in Security thinks she’s nuts because she’s always about the environment so we’re not doing anything. Anyway, it just isn’t our fault. And we’ve told her that plenty of times.”
Seeing the look on your face, Nigma laughs and says “Don’t worry. Most of us keep those conversations on our personal phones and pagers. So don’t worry about it. The company doesn’t have to do anything because the phones and pagers belong to us, not to the company. That’s how we worked around it. Hey! What’s black and white and red all over?”
You decide ignore the riddle (besides, you already know the answer to the riddle: it’s a newspaper) as you open your mouth to start to give advice as to how to handle this situation. What do you say?
Shortly after Mr. Nigma leaves your office, Harvey Dent walks in. Dent is the senior associate general in charge of overseeing all litigation for the company. You also notice that he keeps flipping a coin up in the air constantly and wonder if that helps keep him balanced and relaxed.
You ask him to sit, but he refuses. Instead he closes the door and begins… “I need to update you on a new case we have against Kord Industries. It’s basically a breach of contract action, but we are in federal court because of diversity jurisdiction.”
“So basically,” Dent continues. “I need some advice on how to approach this matter with the judge. My initial pre-trial conference is in 25 days. I don’t practice much in federal court. The guy on the other side has already called me with questions about metadata preservation, whether I have an 30(b)(6) representative, blahblah, but I haven’t gotten him on the phone yet. I have already spent a lot of time with our vendor people and they seemed to know what metadata is even though I don’t – is that a new Microsoft application anyway? They seem to know what they are doing and I trust them plus if they make a mistake I can blame it on them. Right? If a vendor screws up, loses data, or whatever then the company isn’t held accountable. Right???”
Then Dent stands up. “Besides I don’t know computers or metadata preservation so I won’t be held accountable. Heh-heh-heh. Heads or tails. I win. It’s a win-win situation! Hey, want to do happy hour with me and get two-faced?”
You start to shake your head at Dent then you think better of it as you’re getting a sense that he may not be as balanced as he seems. Instead, you ask for a rain check on happy hour and promise to send him a memo that will help him organize his case (and more importantly – not get him in trouble with the judge). What is it you will say?
Oswald pops back in your office. “Oh no” you mutter under your breath.
Oswald cackles, “Enjoying your day?” Before you can respond, Oswald follows up with “Hey, I have two questions. Can you prepare a memo for me answering them? I’ve got to make my lunch appointment with Selina Kyle – she says she has a new business proposal for me. Man, she’s sly as a cat but when she has a good idea she usually has a good idea!” Then he hands you his handwritten notes before waddling off.
1. Can destruction of records under a records retention policy before those records can be reasonably anticipated to be relevant to a particular future litigation constitute spoliation? If so, under what circumstances?
2. Should a very short retention period for e-mail necessarily give rise to a presumption of spoliation? Why or why not? What steps can a party with such a short retention period take to defend its policy?
It’s nearly 6 pm and you’re anxious to get out. It’s time to catch up on the latest episodes on the Game of Thrones show. Curiously, you feel like that show is a reflection of your life in the law practice.
This is not what you expected when you took that LSAT seminar in your last year of college. Plus, you’re not too sure about this city especially with the rumors of a large Bat that comes out at night. Then what about this character called the Joker; is this guy for real? This city just oozes weirdness. You miss Central City.
Then Dent walks in your office waving an article about Metropolis.
You wonder if it’s about the flying guy that is apparently from another world. Now that’s the life! Flying; bulletproof; heat-vision; x-ray vision, can run faster than a speeding bullet, super-strength. And doesn’t he have some kind of a relationship with an Amazon goddess?
No. The article is about how there is a court ruling from Metropolis has breathed new life in the social media debate. You quickly scan the article which talks about how attorneys collecting relevant social media evidence must be prepared to properly authenticate it.
In this article, the criminal defendant argued on appeal that the government had properly failed to authenticate certain Facebook posts attributed to him because the government failed to produce any witness identifying the Facebook chat logs on the stand. He argued nothing in the contents of the message was uniquely known to the defendant and the defendant was not the only individual with access to the Facebook account issue.
In addition, the court rejected government’s argument that Facebook posts were business records that may be “self-authenticated” by way of a certificate from a records custodian under Rule 902(11) of the Federal Rules of Evidence. Much of it can be, you suspect, attributed to the court’s inherent mistrust of social media evidence with all the “fake news” accusations flying around.
Dent looks at you for your thoughts because he’s actually leading a case whose evidence rests on offering social media evidence for its evidentiary matter. He wants to know whether (1) authenticating social media is the same as traditional paper evidence under Federal Rule of Evidence 901; and (2) what are the various instances where social media will enjoy a strong likelihood of being deemed authenticated; and also (3) how should one consider preserving social media in the future?