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Holiday Gatherings: How to Make Them All About e-Discovery (and You)

Brendan Ryan

Last year, you seemed a little reluctant to talk about your job with family during the holidays. It can be hard work to describe the work we do in e-discovery, after all.

That was then; this is now. It’s a time of an unprecedented number of precedents for mainstream interest in e-discovery. It’s a holiday season on the heels of one of the most globally sensitive and divisive US elections in history, when avoiding political topics at the table is more tempting than ever. This year, the intersection of law and technology is your dinner conversation destination.

If you’re looking for something to be thankful for, consider the cornucopia of conversation segues to e-discovery that recent history has brought us. From the follies of professional footballers to email investigations by the FBI, there’s a good chance an unwitting, fired-up family member will walk right into your trap.

Here are some triggers to listen for as you prepare your talking points, taken from a year’s worth of posts by Relativity Blog contributor David Horrigan:

From Football to Fed. R. Civ. P. 37(e)(2)

If your dinner companions happen to fall on opposing sides of the NFL game (which seems to be on in the background of every holiday gathering), or you’re a proud part of the problem of declining NFL TV ratings and couldn’t care less about the outcome, just know enough about American football to bring the conversation to New England Patriots Quarterback Tom Brady and “Deflategate.”

From there, talk about how critical his mobile phone data was to investigating his awareness of the deflated footballs that allegedly gave his team an unfair competitive advantage, and his practice of destroying old phones to protect his personal information. Soon, you’ll be educating the family on the spoliation of evidence. Instead of droning on about football, they’ll be debating the Second Circuit’s decision to uphold Tom Brady’s suspension and the importance of intent to the question of whether deliberate destruction of electronic evidence warrants an adverse inference instruction.

From Table Texters to Mobile Data Protection

Every family gathering has at least one guest with a fork in one hand and a phone in the other. They only get to see you a few times a year, so call them out. It doesn’t matter whether it’s Steve, the nephew glued to social media, or Jacque, the workaholic aunt who can’t seem to give the client communication a rest. Get their attention by asking if they feel their personal data is safe.

You might cite D.O.H. v. Lake Cent. Sch. Corp., No. 2:11-cv-430 (N.D. Ind.), which examines what kids put on Facebook and serves as a warning that, in the event of litigation, failing to produce electronic evidence from social media could result in sanctions—and you might point out that table conversation about legal technology is non-discoverable.

For the family member who likes to mix business with pleasure, how can they make sure their personal data is safe from prying eyes if their employer becomes involved in litigation? The short answer is: they can’t. But this isn’t the time for short answers. This is your time to rattle off some ways to protect their data if they ‘BYOD.’

From Presidential Politics to Efficient Document Review

In a recent conversation on LinkedIn with Tim Thames, legal technology manager at Richard Harpootlian, Xerox e-Discovery Case Manager Susan James remarked, “Over the holidays, when they ask us what we do for a living, we can finally put it into context for them!”

They were, of course, referring to a certain FBI announcement 11 days before Election Day and the incredulous reaction: how on earth did the FBI review 650,000 emails in eight days? Impossible.

Now’s your chance to shed some light. We don’t think you need a whole lot of guidance using this to pivot from politics to e-discovery, but we suggest starting with our recent post, “Election Day and the ‘Impossible’ Feats of e-Discovery,” as well as the preceding Twitter storm.

From Supreme Court Justice to e-Discovery Data Law

Politics tend to come up when relatives meet because so few things are so broad enough to be of common interest in a big family with diverse interests. Celebrity gossip would be an innocuous alternative, but we digress. If you find yourself in a political conversation more on the troublesome topic of the vacant seat on the US Supreme Court, be a hero and bring them into your e-discovery world.

Remind them that the vacancy was left by the passing of Antonin Scalia on February 13. As e-discovery practitioners, we know that many of Justice Scalia’s cases were about getting evidence admitted. What a great opportunity to enlighten the family on the Scalia Legacy for e-discovery data law, left in part by the consolidated opinion deciding Riley v. California and United States v. Wurie, which established that, in most cases, police must obtain a warrant before searching mobile phone data from a person who has been arrested.

Maybe your nephew Steve should take note?

When All Else Fails …

As proud as you are of your chosen field, and as easy as these segues seem, there may simply be nothing you can do to steer the direction of the conversation to what matters most to you. In that case, embrace the zeitgeist, and let the chips fall where they may. You may learn something new.

And at least until next year, maybe there’s something to be said for flying under the radar. As Leonie Taylor, head of consulting at e.law International, once told us in a conversation about our community’s collective passion for e-discovery:

“I love that no one outside the e-discovery world has any idea what I do at work on a day-to-day basis. I’m like an enigma.”


Brendan Ryan was Relativity’s senior manager of partner marketing.

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