E-Discovery Implications for Social Media

There’s an old joke where a man asks his wife, “Why do you always answer my questions with another question?” – To which she replies, “Why wouldn’t I answer your question with another question?” At Sherpa, we’re starting to be asked, “Do I need to include social media as part of my e-Discovery plan?” Our response? “Why wouldn’t you include social media as part of your e-Discovery plan?”

Traditionally (and given the novelty and open-endedness of e-Discovery considerations, we do use that term loosely) e-Discovery, as practiced by most companies, centers around the need to search and produce email or other electronically stored information (ESI) kept within an organization. In truth however, any type of ESI, including information stored outside the organization on social media sites, is subject to scrutiny or subpoena. The increasing popularity and public nature of Facebook, LinkedIn, Twitter and related social sites adds a whole new dimension of potential negative exposure for an organization, be it in the form of damage to reputation or actual loss of revenue.

Just as you should have a plan in place to govern document retention, you also need to manage how users interact with social media and how you can preserve this information for potential, future recovery or e-Discovery.

Some social media e-Discovery factors to consider for your organization:

Which social media outlets are appropriate or beneficial to your organizational goals?
Is there a mechanism in place to permit or deny access to social media websites? Understanding where potential pitfalls may exist is crucial.

• Is there a process to centrally review any material that may reflect company policy or reputation before it becomes publicly accessible?
Legal issues aside, anything your users post or tweet immediately becomes a part of your brand.

• Where is the data stored?
Is there a means to hold data in place? Even if the data in question resides “outside” your organization, Federal Rules of Civil Procedure allow a litigation hold to be imposed in instances where a reasonable anticipation of litigation exists. Simply because data may exist “in the cloud,” doesn’t let you off the hook regarding the protection of evidence.

Let’s face it – social media is a double-edged sword. It’s a new means to engage your customers and promote your brand. But it’s also a technology that must be approached cautiously, as it can rapidly expand the number of locations where electronically stored information lives as well as complicating the effort needed to manage and produce it. This is new territory and the discussion about the challenges e-Discovery and social media presents to legal and IT departments is just beginning.

Sherpa Software is interested in hearing your feedback, suggestions or ways in which you and/or your organization takes proactive measures in this matter. Comment below or contact us to continue the discussion!

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