The Kelly Twigger Interview Part II: The Value of Riley v. California
POSTED ON November 12

Here is another excerpt of our interview with one of our favorite pundits on eDiscovery, Kelly Twigger of Boulder, Colorado-based ESI Attorneys. In this discussion, we look at recent court decisions including Riley v. California. Chris Chalstrom: How are you feeling about the quality of case law governing eDiscovery? Kelly Twigger: I’m excited about what we’re seeing. Overall, I’m seeing mostly good decisions on eDiscovery issues. I like that the decisions are tracking the general principles of discovery too, and that the rules are being interpreted to address technology, but also keeping general discovery principles in mind. There are some decisions that are not as thoughtful as I would like them to be, but I also think that the law is very behind on all technology. And the number of cases is slowly turning into a pretty good body of law. This is the sixth successive year in which we’ve had more than 200 decisions on electronic discovery. I catalogue all of the decisions that come out in my app, so I am very tuned in to what’s happening every week in the case law development. Having a good base of law is important for me because a large part of my job centers on educating judges. A judge operates from his or her own experience — whether it’s electronic discovery or general litigation, criminal law or trusts and estates. So the attorney that approaches the court with an issue, whether it’s electronic discovery or something else, must educate the judge on what they need to know. When the attorney files a motion, their brief is the educational vehicle that bears the precedent supporting their argument. While we have a growing body of case law that we can use, there are many distinct issues in electronic discovery and they are changing regularly. For example, I’m regularly asked what information lawyers can request and get from Facebook. That wasn’t an issue in 2006 when the rules came out. Lawyers across the country are digging in to these issues, researching them appropriately, and putting them in a motion. A developing body of law allows them to have precedent to show — even if it’s only persuasive from another jurisdiction – that another court has considered the issue and written a thoughtful decision about it. More often than not, state or even federal courts that lack decisions on a particular eDiscovery issue will examine other non-electronic discovery precedent. You are always better off guiding the judge to the case law you want the court to consider, and in eDiscovery, that means looking across the country for decisions until your jurisdiction has addressed the issue in a published case. Some of the legislation that governs privacy – for example what social media sites have to provide from their users’ accounts – is out of date. There is pending legislation to address some of those issues, but our Congressional gridlock means it’s very unlikely they’ll be addressed in the near term, so courts will have to keep interpreting legislation that never envisioned social media or mobile devices, and that’s challenging. So, we’re stretching the bounds of what currently is on the books. Thoughtful legislative action is needed. My concern is to make sure that those writing the proposed legislation are talking with lawyers like us who are in the trenches on these issues and see the practical implications of any proposed language. Technology is moving much faster than the law, and we need legislation that won’t be dated the minute it comes out. I know that Sen. Al Franken addressed privacy issues in GPS systems in mobile devices in the Judiciary Subcommittee on Privacy, Technology and the Law. That’s a start. The scope of what you can get incident to a warrant, or not incident to a warrant, out of your mobile phone these days is scary. I think that is a very, very slippery slope that we’re on with decisions relating to mobile phones. Chris Chalstrom: But Riley v. California is providing some nice direction on that. I was really nervous prior to issuance of the decision because I’ve read so much indicating that the U.S. Supreme Court was not up to speed on technology and feared that would affect the decision in Riley. For example, the Justices don’t use e-mail so, not surprisingly, it would be difficult for them to understand it. However, the Court held in Riley that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. I believe that decision showed that they do recognize there is a wealth of data on handheld devices. Kelly Twigger: I agree that the Riley decision was well written and thoughtful. And that’s what we hope for as lawyers. I agree that the decision showed the court’s knowledge, and I was relieved too. The Supreme Court can only address what’s before it though, and that’s a huge limitation, especially with the rapid changes in technology coupled with the costs and time it takes to make it to the appellate level. Social media is such a big issue in case law right now. I think that judges are considering social media and what is private and what is not private among posted content, and for the most part I’ve found them to be thoughtful and fairly good decisions. My personal belief is you shouldn’t put anything on social media that you don’t want tattooed to your forehead, put on the cover of the New York Times or featured by Brian Williams on the Nightly News, but that isn’t how everyone lives their lives. Chris Chalstrom: That’s interesting because social media is where an attorney got bit about a year and a half ago. It was a decision in a plaintiff’s case and basically he told the plaintiff to clean up his Facebook and the client did. Obviously, by advising the client to do that he violated his duty to preserve. The attorney did not understand technology. Kelly Twigger: He didn’t know what he was saying– Delete everything? Many lawyers just don’t realize that posts on social media are evidence in the same way email, documents, photos and text messages are evidence. The same preservation principles apply. If you’re worried about whether a client will not heed your advice, have them download the full contents of their page to you for preservation early on. There’s a great ethics opinion out of Pennsylvania that details lawyers’ obligations related to social media, including how to advise clients. I think we are getting there on a good body of case law, and hopefully we’ll continue to see judges becoming more educated about eDiscovery, the inherent issues, and how to help parties control the costs. Chris Chalstrom: I think so, too.

About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.