Social Media and eDiscovery
Evolution of Communications: Are Email’s Days Numbered?
(Continued from post) There are those who wonder when email will be supplanted by Facebook messaging, or LinkedIN messages, or by some social media site we perhaps don’t know about quite yet. In a recent blog post, Jeremiah Owyang writes about how he views the days of email being numbered. He writes that Facebook is often the preferred communication mechanism for avid Facebook users, and that the average age of a Facebook user is now advancing above the age of 35 years. This statistic shows that those who currently only use email to talk to “old people” are rapidly getting absorbed into the corporate world where messaging may be only handled by social media sites (read: Facebook).
John P. Mello Jr., in a PC World article from November 11, 2010, entitled: “Social Networks to Supplant E-mail in Business?” states that the research firm Gartner predicts that 20 percent of workers will use social networks as their primary vehicle for business communications by 2014. Gartner cites greater availability of social networking services, along with favorable demographic trends and amenable work styles as the key drivers of this social network approach to business communication. In the article a Gartner Research Vice President (Monica Basso) predicts that: “the rigid distinction between email and social networks will erode”, and she further envisions that: “email will take on many social attributes, such as contact brokering, while social networks will develop richer email capabilities”. This article talks about how email platforms will absorb social network features, which of course “blurs the lines” between private and business communications.
Implications for Ediscovery and Corporate Data Managers
So in this “social network as business communication medium” scenario, what should the corporate records manager or inside corporate counsel consider in terms of their electronic discovery needs?
Classic Social Media discovery issues have centered around when an employee has posted something that is inappropriate or harassing towards another employee on a publically available social media site; or when an employee has shared private business information among a wide group of “friends”; causing damage to one of them or the business as a whole. In these instances, it was largely a situation where an employee should have been more careful of someone else’s image or the image of the company for which they worked. The situation was largely framed around a user putting something in the view of others in a public forum. The social media site either could or could not be compelled to produce the information for a discovery matter, or the information was in plain sight all the time, so it was a bounded discovery problem.
Now that business communications are going to be generated and managed within the purview of someone’s social media account, it becomes more of an issue as to when these messages have to be surrendered for a legal discovery matter. A given user will have private and public messages within their social media messaging “store”. There may be “gray areas” about what a business record is and what a private message is. More importantly, if a judge requires that all messages pertinent to a given matter be produced, it will require that business records known to exist within a private social media account be produced. This will likely require that all messages in a private account get produced for analysis.
In these cases, it will likely involve a set of “legal gymnastics” to require that a person give up messages that reside in a personal social media account. I am not a lawyer, so I will leave that to others; but I can say as a technologist and a person involved in the electronic discovery industry that corporate managers should take some practical steps to protect themselves in the event of a litigation event that may require discovery. If a business allows the use of social media messaging or social media services in the normal course of its commercial affairs, it must assume that messages “in the network” will one day be required for legal production. It may have to compel private users to provide the corporation access to their private as well as their public business records that are in the social media messaging mailbox. This scenario may require employees to sign agreements granting the employer access to their private mailboxes as a condition of employment.
Founder and CTO of Digital Reef, Steve Akers, will moderate a panel on "Social Media: The Intersection of Case Law, Data Privacy, and Practical Discovery" on September 14 at the San Francisco Master's Series for Legal Professionals. To register visit DIGITAL REEF EVENTS.