Federal Rule of Civil Procedure Rule 34 defines “electronically stored information” as data compilations stored in any medium that can be translated into a reasonably useable form. The Advisory Committee notes say the Rule is “to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and development.”[1]
A web log, a publicly available online journal commonly referred to as a “blog,” is one form of electronically stored information. Bloggers can provide commentary on news, maintain an online diary or simply express whatever is on their minds. As of December 2007, there were at least 112 million blogs being tracked by the search engine Technorati.[2] Blogs can take the form of online postings, video diaries or even social networking websites.
The computers where a blog was first drafted, where it is hosted, and where it is ultimately saved by a reader could all become the targets of a discovery request seeking electronically stored information. Blog entries may be as candid as those in a traditional diary. However, blogs are publicly shared across the virtual world.
Blogs in Lawsuits
A United States Senator’s staff assistant created a blog highlighting her social life and sexual encounters with various men. One of the men sued for invasion of privacy and intentional infliction of emotional distress within 11 days of the blog going online. The blog was the center of the lawsuit, constituting the basis of the claims and affecting discovery disputes as well as damages sustained.[3]
The success of YouTube, MySpace, and other blogging tools has created a phenomenon where people are sharing details of their lives they would not have in the past. Individuals are unwittingly making potentially libelous statements, party admissions and even present sense impressions. Blog searching can be a powerful tool for informal and formal discovery in finding evidence. This will be explored in greater detail in For Whom the Blog Tolls, Part 2.
[1] Federal Rule of Civil Procedure 34 and Advisory Committee Notes.
[2] Wikipedia, visited on December 28, 2007, http://en.wikipedia.org/wiki/Blog
[3] Steinbuch v. Cutler, 463 F.Supp.2d 4 (D.D.C. 2006)
January 29, 2008 at 6:58 am
Hi — Nice blog you have going here. Personally, I think FRCP eDiscovery court rules are highlighting what can best be described as a rapidly evolving corporate landscape. While email archiving and data retention have slowly gained attention as critical forms of legal insurance, it is not hard to see why blogging is close behind. What do you think will be the next electronic communication to be regulated? Message boards? Group discussions? Looking forward to part II.
January 31, 2008 at 7:45 pm
Thanks for the great response.
Blogging has many issues to watch out for in litigation. There are cases where a juror was challenged for having a blog during a trial, First Amendment issues with students using blogs to encourage on campus actions, and child custody fights where parents made conflicting statements in court and on their blogs.
Blogging will continue to be an issue in litigation. As for the future, I am very interested in policies regarding instant & text messages that companies develop. We have one upcoming article on that topic alone.