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Are social media e-discovery's next nightmare?

Barry Murphy | Aug. 21, 2012
In many ways, the emergence of social media is a replay of the e-discovery challenges posed by email in the 1990s. This time, though, we have that precedent to learn from.

Companies need to get ahead of the social-media curve and have granular policies on what social media to collect, how to preserve it and how long to archive it. There is no need to simply keep everything; the right policies and defensible execution of those policies will manage the risks that social media can pose.

It is wise to start by creating clear policies that state whether employees should expect to be monitored when using social media on company property (that is, when using company-issued devices or the company's network). Importantly, the policy should clearly delineate acceptable use of social media for business purposes and state whether employees can use social media for personal reasons. This social-media governance effort should be driven by legal and compliance profiles.

Clearly, regulated companies have more reason to aggressively monitor, collect and preserve social-media content. Even in highly regulated companies, however, the rules of storing electronic communications apply to only a subset of employees. Especially in these early days of social media, companies must be careful about over-collecting and running into storage problems down the road.

They also need to determine which content capture mechanisms are right for them. Companies must determine what constitutes a reasonable effort to collect and preserve social media, when to select employees when a historical point-in-time view is required, or when to capture adds, changes or deletes going forward to support an ongoing matter. And finally, companies need to plan for more and more forms of social media going forward. While companies can focus near-term efforts on the major publishers (Facebook, LinkedIn, Twitter), over time there will be more and more sources of social media for companies to govern. For example, the number of users of social networks like Google+ and Tumblr continues to increase. More and more companies share video content via YouTube. And just imagine the rich evidence that a site like FourSquare (which allows users to check in with their geographic location) could provide.

In short, the relevance of social media to the e-discovery process is obvious. It would be a mistake not to start thinking about how to address the challenges that the emergence of social media poses.



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