Social Media and E-Discovery: Impact and Influence

Contributed by Steven W. Green, Hudson Legal

 

 

• As corporate social content increases, so will the challenges that corporate litigants face in producing and reviewing data stored with social media providers.
• The key social media challenge in electronic discovery is to collect and prepare social media content for review, production, and presentation in a way that preserves its original context and significance.
• Corporations must prepare and strategize for the discovery implications of this emerging social media world.

Introduction

Corporate demand for assistance in dealing with the high costs and complexities of discovery in the digital age has given rise to an entire e-discovery industry. As business information shifted from paper documents and correspondence to stored data and electronic mail, the volume of corporations’ potential evidence rapidly increased. Tools, technologies, and methods have been, and continue to be developed to help assess the relevance of electronic data, and most advancements have been designed to grapple with enormous quantities of email.

Social media is now widely considered to be overtaking email as the primary means of electronic communication. While this appears to be the case for personal communication, it remains to be seen whether business communication will follow suit. If it does, technological and workflow approaches to each phase of the current e-discovery model will need to evolve to ensure social media content is properly preserved, collected, reviewed, and produced in satisfaction of discovery obligations.

Minimal Corporate Risk So Far

SharePoint and a number of services under the umbrella of “Enterprise 2.0” contain social-like features, but are generally controlled or hosted by the user corporation. Assume that by social content we are referring to environments such as Facebook, Twitter, and blogs – areas where interaction is not restricted to a private corporate network.

There have already been a surprising number of court decisions related to discovery of social media content. However, a distinct pattern is clear: these cases deal with individual-oriented litigation such as personal injury.^[1] Where a corporation is involved, it is the party requesting social media information from an individual, usually to refute a claim about the individual’s physical condition or state of mind.

It’s unlikely that a “smoking gun” piece of evidence relevant to high-value corporate litigation will turn up in a social media posting. Corporations and their key employees generally understand social media environments to be public spaces, and are not using them to communicate company secrets. Corporate social content is typically for marketing purposes and intentionally public. While risks to corporations may be minimal now, as social media adapts to serve more business uses, it will become more relevant to e-discovery.

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Does Social Media really matter?

I’m speaking next week at the Marcus Evans Social Media Legal Risk and Strategy conference in San Francisco. I’m excited and honored to have the opportunity to share my thoughts on the impact of social media on e-discovery alongside a very impressive group of attorneys, who will be speaking on a variety of legal topics related to social media.

In e-discovery circles, social media has recently become one of the hottest topics, and with seemingly good reason. It’s without question that communication is shifting to social media at an incredible clip, and it may not be long before email is surpassed as the primary means for written electronic communication. It’s also without question that this hasn’t happened yet for business communications.

A distinct pattern, not immediately obvious, began to emerge as I read through the surprisingly large number of social media e-discovery decisions in preparation for my presentation. Yes, there’s a solid amount of precedent already, but the central questions of fact in those cases almost universally revolved around a single individual’s physical condition or state of mind.

This makes intuitive sense. While people are likely to share personal info on a social networking site – e.g., to describe their physical health or mental state – it’s far less likely that important or sensitive business material would appear here. Most businesses do have a social media presence, but its content is calculated and intentionally public. In other words, a company’s social media content is probably the last place you’d find a smoking gun.

Part of this depends on how one defines social media. There are internal corporate environments under the umbrella of what’s being called “Enterprise 2.0” with social features, such as internal blogs and wikis, and arguably SharePoint. But from an e-discovery perspective, these environments are not dissimilar to other shared resources under corporate control. And where things are complicated by the fact that this type of service is stored in the cloud, I’d call that a general cloud storage issue and not a social media-specific issue.

Think about the types of cases where e-discovery is really important. The ones with huge volumes and incredible costs, without which the need for innovation would not have been so great and the entire industry may not have existed. These are the antitrust second requests, the bet-the-company patent litigations, the multidistricts and the government investigations. They’re not the personal injury, employment discrimination, and defamation cases in the social media e-discovery caselaw to date.

In the near future, we may see more business content intertwined with the social media space. Google Plus, for example, promises to not only provide for private workspaces alongside personal social content, but also to deeply integrate social and web content. Things are going to get a lot more complicated. But for the moment, social media is more of an e-discovery novelty that’s fun to think about than a serious e-discovery problem for corporations.