Preserving ESI on Twitter

Once litigation is “reasonably anticipated,” parties have an obligation to preserve all potentially relevant material.  That obligation extends to information reasonably under a party’s control, even if it is not actually in its possession.  This raises significant concerns when it comes to information on social media sites such as Facebook and Twitter—the information may well be relevant, should likely be preserved, but is it in the reasonable control of the party?  Some recent changes with Twitter reveal that the answer is yes—it is reasonably under the control of the party, and must be preserved.  Fortunately, Twitter also now provides an easy-to-use tool to preserve this information.

During one of Twitter’s quarterly “Hack Weeks”, employees engineered Twitter archiving, which allows users to access Tweets from their Twitter account past. On December 19, Twitter launched this new feature to a small group of users who have their account language setting on English.  It’s not yet clear whether this archiving feature will include “Direct Messages,” so attorneys should ensure that any such information is either captured or separately preserved.  It will be rolling out to all other users over the coming weeks and months, according to Mollie Vandor, part of Twitter’s User Services Engineering Team. 

Archiving allows users to access and download Tweets from the beginning of their account, including retweets.  After they have their account set up to access the archives, they can view Tweets by month, or search their archive based on certain words, phrases, hashtags, or @usernames, according to Vandor’s blog.

You might be wondering how you can access the archiving feature on your Twitter account.  After logging into your account, go to Settings, scroll down to the bottom, then check for the feature, which will allow you to access your Twitter archive.  Click on the button, and you will receive email instructions on how to access your archive once it is ready to download.

Some thoughts and potential best practices for attorneys:

-       -  Include Twitter usage in initial interviews with clients regarding ESI

-       -  Ensure clients are directed not to delete or modify their Twitter accounts in a litigation hold letter until such time as the account can be fully preserved

-      -   It’s not yet clear whether the archiving feature will include Direct Messages or lists of accounts followed by a specific user, so extra care should be taken to ensure this information is separately preserved if applicable

Taking Expert Depositions (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It addresses taking the deposition of an expert witness.
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Checklist: See the general deposition checklist
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Thoughts & Best Practices:
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Subpoena Expert’s Files
- Unless an agreement can be reached to provide expert’s files, subpoena these in time to review prior to deposition
- Additionally, ask for all correspondence between expert, opposing counsel, and/or opposing party.
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Identifying the expert’s opinions at trial:
- Identify the opinions expert intends to provide at trial, and confirm that expert will not testify to any other opinions.
- For individual opinions, identify the specific bases for each and confirm that expert will not testify at trial that there were any other bases.
- Ask “what’s your understanding of your role in this litigation?”
- Identify the basis for each opinion: what materials reviewed, what tests performed, etc.
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Undermining the expert’s opinions:
- Where expert used one methodology/test, ask about other possible methods, whether expert considered, why expert chose not to use, whether expert has ever used such methods, etc.
- Did expert make any incorrect assumptions or calculation errors? If so, begin by having expert testify as to the importance of that calculation in overall conclusion. Most likely it is best to not highlight the expert’s error in deposition and save this “reveal” for trial, but consider settlement posture, trial prospects, etc. in evaluating this issue.
- Explore range and degree of uncertainty in expert’s opinions. Often absolute certainty hurts credibility, and any admission of uncertainty creates reason for doubt.
- Use hypothetical examples to test the limits of expert’s opinions—e.g., “would that still be your opinion if ____?”
- Explore whether the expert have sufficient time/access/information to properly form opinions?
- Was any information withheld from the expert? Did the expert ask for any information or access that was not provided? Is there a pattern to this withholding that can skew the expert’s opinion?
- Ask if there was any information that would have been helpful but that expert did not have, or whether there were any tests or methods that may have been useful to pursue but where expert did not have time, materials, or budget for?
- Ask if expert personally read all of the information provided?
- Ask if expert consulted with other experts in the field? Why or why not?
- Ask expert for treatises consulted in forming opinion—other sections of text may provide helpful information.
- Review any treatises or published sources referenced in expert’s report—does it suggest alternatives, methods, or steps not taken or considered by expert?
- Has expert ever been excluded under Daubert/Shreck or had some or all of testimony excluded?
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Laying the foundation to move to exclude expert’s opinions:
- Can any part of expert’s opinions be construed as being based on legal opinion formed by non-attorney expert?
- Did expert base any part of opinion on a conclusion that comprises expert opinion but where expert not qualified?
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Attacking the expert for bias:
- Examine expert’s C.V. for shortcomings, puffery, false claims, omissions, certifications/licenses that have lapsed, or experience that is only tangential to the contested issue
- Learn about all of the expert’s certifications—Are they the most relevant certifications? Why hasn’t expert earned other certifications?
- Does the expert have any connection to the opposing party, opposing counsel, or opposing party’s industry/profession?
- Attack the accuracy/credibility of expert by looking at business practices: Is it a volume shop? What percentage of income is earned as expert witness?
- Ask about the expert’s tort reform activities, political donations, letters or emails to media or politicians, etc.?
- Does the expert have any track record of opinions at trial being later validated or invalidated by reality (e.g. in cost of remediation cases, etc.)?
- If report or investigation was co-authored, has that been concealed? How much of report was product of someone other than expert?
- Check litigation history (especially things older than the 4 years of required disclosure), look for whether expert’s opinions have been excluded, a pattern of testifying only for one side of an issue (ask % testifying for side), or previous opinions that undermine present opinion.
- Expert’s fees: How much did expert earn as expert witness in last year? Average annual income from expert witness work? Percent of income from expert witness work? Most ever earned as expert witness in single case?
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.