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Joseph M. Burton is the managing partner of the San Francisco Office of Duane Morris LLP. He is a nationally known expert on the law of electronically stored information (ESI) who advises clients on legal issues related to all aspects of the retention, management, security, and discovery of ESI. He has broad experience in counseling clients and litigating matters involving ESI, including data breach investigation and response, e-discovery, and the use and admission of ESI in court and administrative proceedings. Mr. Burton is a former Assistant United States Attorney and Chief of the Silicon Valley Office for the Northern District of California.
A major function of the legal profession is preserving, collecting, and then testing the information of society, so as to resolve disputes. An exponentially increasing amount of such information is now created by, and stored in, the networks currently known as social media. There is an evolving technique on how to perform this function, currently employed by this nation’s litigation lawyers. How do we preserve information if it is not really under our control? How can we legally get access? How can we test whether such information is authentic and then prove it in court? Or, conversely, how can we disprove authenticity? This article discusses the most recent trends in this emerging area, and makes practical suggestions about methods that can be used to address competing, legitimate concerns.