As the saying goes “I’ve seen the future and the future is now.” This was my first reaction after analyzing two recent surveys regarding social media and its nexus with e-discovery. The first one was from Clearwell (now a part of Symantec) and the Enterprise Strategy Group (ESG) entitled “Trends in E-discovery: Cloud and Collection.” Beyond examining cloud issues, the survey also queried respondents about the growing impact of social media on e-discovery. While many of the responses struck me as intuitive, the survey underscores the fact that we have crossed over the chasm of social media to the point that this content simply cannot be ignored any longer—particularly from risk, compliance and e-discovery perspectives.
For the last decade, email was the 800 pound gorilla in the e-discovery context, often to the dangerous exclusion of other forms of electronically stored information (ESI). However, in 2011, we’ve now reached the tipping point with 58 percent of respondents of the ESG survey expecting to manage social media applications as part of e-discovery, more than double the 27 percent who did so in 2010. Not only is this a massive increase in a single year, but it also moves social media from a fringe element to a mainstream source of ESI.
When asked what types of social media applications would be the most relevant for e-discovery, 79 percent of the ESG survey respondents named Facebook, followed by Twitter (64 percent) and LinkedIn (55 percent). The growing relevance of social media in e-discovery exacerbates the urgency for enterprises to take the necessary precautions to implement the necessary processes to meet the ever-changing demands of rising litigation requests. No longer is it just about email—organizations now must proactively address social media as part of their overall e-discovery strategies, or otherwise expose themselves to magnified risk and added expense.
Similarly to the ESG survey, Applied Research and Symantec queried 1,225 senior enterprise IT professionals in their Social Media Flash Poll. In one of the main findings, the Flash Poll found that social media is extremely ubiquitous in the enterprise environment, with 45 percent of respondents using it for personal uses and 42 percent using it for business reasons. Rating highly were a number of disparate social media devices including blogs, multimedia sharing, business forums and of course, social networking—both personal (e.g., Facebook) and business (e.g., LinkedIn). It’s also worth keeping in mind that while employees believe that they segregate their use of social media, the line between personal use and business use is quite blurry—much to the consternation of e-discovery professionals.
The impact on e-discovery, while somewhat obvious, is nevertheless a significant challenge to many enterprises.
Initially, the increased use of social media intrinsically means that email isn’t likely to be the sole source of responsive information pertaining to a lawsuit (or governmental inquiry). While this hasn’t really been the case for many years, it’s time for the attorneys scoping e-discovery matters to face facts and abandon old-school notions that email axiomatically equals e-discovery. For good or ill, the world of potentially responsive ESI simply isn’t that homogenous, and will continue to evolve over time as new information messaging technologies appear.
The Flash Poll also honed in on how this increased use of social media was impacting IT professionals. And, while information governance concepts (compliance and retention polices—both at 45 percent) rated higher on their risk index, the management of e-discovery was still a significant (and growing) concern at 37 percent. Also, while IT folks are increasingly concerned, it’s safe to say that their attorney counterparts (who have a heightened sense of risk profiling) are even more worried about the impact of social media on the already complex e-discovery process.
The risks of spoliation regarding social media are real. While existing case law on this topic is sparse, it’s abundantly clear that the failure to preserve responsive social media ESI is the equivalent of juggling with chainsaws. While there’s certainly a chance that things won’t end in disaster, the risks of spoliation sanctions are significant—and are increasing rapidly with the rising e-discovery expertise of the plaintiff’s bar. In a 2011 e-discovery survey just released by Gibson, Dunn & Crutcher, they noted that the number of instances in which litigants sought sanctions in the first half of 2011 was more than double the number in the same period last year. Similarly, they also found that sanctions awards also nearly doubled in absolute terms. Social media moving into the mainstream flow of e-discovery ESI will only serve to increase the number of minefield for litigants.
Despite the writing on the wall, very few practitioners actually seem prepared to effectively handle social media in an e-discovery context. In a survey by the Electronic Discovery Reference Model (EDRM) it was noted that “[w]ritten policies for social media are non-existent,” with 85 percent of industry professionals admitting that “no written policies existed within their organizations regarding the preservation of data for any of the wildly popular social networking sites.”
So, what can be done in the face of this changing e-discovery landscape that used to be dominated by email? First, it’s imperative to understand your unique regulatory/legal requirements. This facilitates the mapping of new social media technologies/content to the requisite policies, which address data mapping and the retention of social media content, either in a proactive sense (i.e., archiving) or in a reactive sense (i.e., litigation hold).
Next, policies that govern the acceptable use of social media (for legitimate business purposes) should be promulgated in order to better control the chaos of rogue personal usage. Additionally, legal hold questionnaires should be updated to include a range of social media platforms, particularly if certain usage types are expressly used as part of the corporate communications landscape.
Finally, it’s important to ensure that someone is minding the store with regard to social media. From an ownership perspective, proactive policies should be driven by in-house counsel. Conversely, ensuring that reactive litigation preservation efforts include social media should probably be owned by outside counsel, who likely has their malpractice insurance on the line in case of any spoliation sanctions. In either scenario, coordination over roles and responsibilities is paramount, particularly with the speed at which social media content is multiplying.
Given the proliferation of social media in the corporate context, the e-discovery implications are both real and dramatic. Failing to pay proper attention to social media is done at significant peril to both IT professionals and attorneys alike—particularly as sanctions cases increase and the requesting parties recognize the chink in the armor of many larger enterprises. Now is the time to deploy the right level of proactive and reactive policies, so that social media doesn’t catch the enterprise off guard.