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E-mail, instant messaging and even voicemail have become likely targets for e-discovery requests. But social networking sites, such as MySpace, LinkedIn and Facebook, have yet to enter the crosshairs of plaintiffs' attorneys.
"Social networking is a very new phenomenon," says Jennifer Bertoglio, president of LawyerLink, a legal staffing firm that specializes in providing temporary assistance for document reviews. "We haven't seen social networking come up in e-discovery yet, but we all have read about what happens when information posted on someone's MySpace profile gets him or her into trouble."
There have been a number of incidents where someone with a MySpace or Facebook account lost a job or damaged his or her character due to inflammatory postings. That's why experts believe it is completely feasible that an employee's profile could come back to haunt not just the individual employee, but the company as well. This especially applies to in-house counsel who participate in online social networking.
"It's a comfortable means of communicating that lawyers have to use caution with when entering so they're not undertaking any casual conversation that could be construed to waive any privilege or cause grounds for plaintiffs to file a suit," Bertoglio says.
Bertoglio advises that, for now, in-house counsel incorporate social networking sites into the company's electronic communications policy, providing the same rules for proper usage that apply to other means of electronic communication, such as e-mail.