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.
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.”