Social media trends impacting regulated and nonregulated organizations today are at the forefront of the information governance imperative as they present unique challenges for organizations. Social media falls under the umbrella of information governance as an unwieldy data source that promises great rewards for businesses, yet it poses equally large risks for organizations. These risks include, but are not limited to, the violation of regulations that standard industry bodies issue, litigation, compliance issues, data privacy breaches, brand damage and intellectual property theft.
The trends indicate that we live in an era in which ignoring, blocking or constructing too strict a social media policy will put an organization at a competitive disadvantage. Social media rivals email in usage frequency and volume in many industries as an increasingly preferred communication method. This user-driven preference is not something organizations can control, but it is something they must adapt to as market and generational behavior largely dictates the flow of information.
It is becoming a matter of course that social media is discoverable in employment law given the recent case EEOC. v. Original Honeybaked Ham Co. of Georgia. In this case, as others that preceded it, discovery of social media was granted to the extent relevant information could be found. The judge in this case was appreciative of privacy concerns, and went on to establish a system of reviewing, via a forensic expert to a special master, the following: text messages, all social media websites accessed, and access to all email accounts and blogs during the time in question.
Given this trend, it is safe to assume that the same will be true in the context of criminal law, intellectual property litigation and other complex commercial cases. If an organization is regularly using social media in the course of business, social media will be treated like email for the purposes of discovery. According to X1 Discovery, there were more than 320 published cases in the first half of 2012 that considered social media in discovery. Although a good portion of these cases do involve employment law, the number of cases outside that purview is growing.