An Introduction to Social Media E-Discovery

Social media is here to stay – in the living room, at the kitchen table, at the movies, in the coffee shop, and even in the workplace. The boom of mobile applications has taken popular social web apps like Facebook, Twitter, Pinterest, and LinkedIn to new levels of user growth and virality. More users mean more data; and where there is data, you’re likely to find a case for electronic discovery (or e-discovery, for short).

Let’s start with a definition. Electronic discovery is the process of searching for and finding electronically stored information (ESI) – often a procedural necessity in civil litigation. In the past, we’ve thought about e-discovery when dealing with such things as the exchange of company email, saved documents, etc.. If any of these things were evidentiary in nature, they might be “discovered,” (using some form of software for e-discovery) and presented as evidence in court proceedings.

Social media, as it happens, is no different. I alluded earlier to the fact that employee-to-employee communication via social media during the workday has become no less than a commonality. In some companies, it’s actually encouraged. Many executives contend that social media use can in fact improve overall productivity. While this sort of encouragement is obviously warranted (to some degree), it should not come without preparedness for possible litigation down the road.

Collecting Social Media Data

This is the ‘how’ side of the coin. It is imperative that – before moving forward with encouraging workplace social media communication – you understand how you’re going to collect social media data. Social media is sort of the Wild West of the Web. Communications are moving so quickly in such high volumes that it’s hard to keep track of the goings on. Unfortunately, “it’s too hard” won’t get you any slack cut in a court of law.

For this reason, it’s a good idea to explore all of the possible options for collecting social media data. Some of the avenues you might explore include:

-Screen shots of communications
-Communications sent/monitored via proxy server
-Communications indexed by custom web crawler
-Communication data pulled from application APIs

There are other viable solutions worth considering. As is the case with those listed above, each method will always have its pros and cons. Nonetheless, it’s vital that you have some methodology in place before you give the go-ahead.

Implementing Defensible Policies

To be discovered, the data must first exist. One of the key aspects of surviving an e-discovery request is the presence of defined retention and litigation hold policies. This is true of document discovery, as well as email. You can bet that it’s true of social media e-discovery.

With a retention policy, companies can provide a stringent outline of the type of social media data they collect, where they archive it, and how long they keep it archived. This way, when the deletion of a particular item comes up in litigation, there are clear guidelines that point to the defensibility (or lack thereof) of the deletion. The system understands that storage is an issue; data won’t be stored forever.

A litigation hold policy, on the other hand, is put into effect when a company suspects impending litigation. The primary function of this policy is to mandate that any data that might be evidentiary in nature remains archived (and undeleted). With social media, though, the litigation hold policy might include limitations on future social media communications (Facebook posts, Twitter tweets, Pinterest pins, etc.), changes in the types of communications permitted during the period prior to litigation, etc. Any and all of these things are worth considering. With email, a comprehensive litigation support software can aid you in implementing these policies.

Social media is a great tool. It can breed collaborative culture and even productivity in the workplace. However, without strict policies in place to govern social media communications and methodologies to collect and archive those communications, it will be difficult to build a legitimate defense when workplace social media exchanges become the subject of litigation. Prepare your strategy early, and you’ll be able to relax down the road.

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