Recap of Digital Reef’s Social Media Webinar
Recently, Digital Reef hosted a webinar on the intersection of case law, data privacy, and discovery in the context of social media. The webinar covers three major topics related to social media:
1.) Provides a brief overview of some of the recent case law, employer liability concerns and new ethical concerns using social media
2.) Instructs readers how to prepare for social media discovery responses
3.) Provides social media policy best practice tips
The webinar helps listeners gain a greater grasp of the importance of having firm social media policies and procedures, and become better prepared to implement an action plan to address social media discovery.
One of the first distinctions drawn in the session was between business and personal communications. The line is getting greyer regarding whether or not communications are business related versus more personal when you are “friends” on Facebook, “connected” via LinkedIn, or “following” co-workers using Twitter and an issue arises at work. Social media has also exploded the number of “places” where electronically stored information relevant to a case might reside. Evidence is as likely to be located on Facebook, Twitter, LinkedIn, Instant Message, or SMS as it is in corporate email, or files stored on a shared network. The landscape is made even more complex given increased business use of various electronic devices such as laptops, tablets (iPads), and Smart phones.
If litigation ensues, how do you get a copy of the “tweet” or posting so that you can produce it to opposing counsel, and what happens to the evidence when co-workers spread the comments/pictures/etc. via their smart phone over the internet?
Furthermore, social media posses more challenges to traditional corporate practices of relying on email exchange servers to keep track of data and for preservation purposes. How do you place an internal “legal hold” to preserve any relevant data when the data is not hosted on your servers? The use of social media forces companies to think of strategies and cost effective measures in order to deal with its unknowns. Hence, companies need to invest the appropriate time, energy, and money in implementing plausible policies and procedures to protect them from exposure and liability.
Skilled litigators can figure out what’s going on. Utilizing the ENRON debacle as a case study, tens of millions of emails were analyzed which produced voluminous “red flag” terms such as “big mistake,” “can’t believe,” “just between us,” and “serious trouble” which indicated that something was awry at the company. eDiscovery, in these circumstances, is invaluable. It is easier to implement these tactics when the data is in-house, however, in the realm of social media, there are a lot more obstacles. Social networking sites typically battle tooth and nail to prevent giving up privacy information of its users, which can present enormous road blocks if the litigator cannot agree with opposing counsel to accept screen shots or printed copies of the party’s profiles.
Organizations should develop a social media policy that clearly articulates to their employees what comprises appropriate and inappropriate use of social media. Some simple best practices from the webinar were to not post anything that you would feel awkward saying in public; refrain from disclosing confidential or sensitive information online; and know the “ins and outs” of the social media site’s privacy and user settings. Be mindful that this new way of interacting online is fun and exciting, yet volatile and highly unregulated. The activities that you participate in and the matter that you conduct yourself may have consequences somewhere down the road once the court system catches up to where we are now.
Click here to listen to the replay
Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which speciLalizes in Litigation, Diversity and Business Development/Social Media consulting.