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Emtec Adviser- Facing Legal Challenges

Organizations are unprepared to meet coming e-discovery demands for content from social media Web sites, experts say.
 

By the end of 2013, half of all companies will have been asked to produce material from social media Web sites for e-discovery, according to Gartner. However, experts say organizations are woefully unprepared to meet this legal challenge.

E-discovery refers to the identification, preservation, collection, preparation, review and production of electronically stored information in legal and regulatory proceedings. E-discovery accounts for 30 percent to 50 percent of litigation costs due to the challenges associated with locating discoverable information within short timeframes.

E-discovery of social media content is expected to be particularly problematic. In a recent survey commissioned by the Deloitte Forensic Center, 62 percent of respondents who expressed an opinion said their companies are concerned about the e-discovery challenges posed by online social media forums. One-quarter of respondents indicated that their companies are ill-equipped to handle e-discovery requests pertaining to business-related use of social media, and an additional 36 percent indicated their companies are only somewhat prepared. “

The demands of e-discovery are clearly growing. Facebook and Twitter have not only become more prevalent in employees’ personal lives, but have also become more accepted in the workplace, as companies are beginning to leverage social media platforms throughout the corporate environment,” said Jeff Seymour, leader of the northeast analytic and forensic technology practice for Deloitte Financial Advisory Services LLP.

Growing Concern

Gartner Vice President and Distinguished Analyst Debra Logan says that internally managed collaboration and social media content is coming up frequently in e-discovery requests. The more integrated the system — unified communications, for example — the more likely that one form of content is reasonably calculated to lead to the discovery of admissible evidence. Because there is legal uncertainty about the role of social media in e-discovery, managing it is challenging, and claiming that personal social media content is private is no shield for the individual, as recent cases have shown.

“In e-discovery, there is no difference between social media and electronic or even paper artifacts. The phrase to remember is ‘if it exists, it is discoverable,’” said Logan. “Unique aspects of social media present additional challenges, but as with an overall information governance strategy, the key to avoiding or mitigating potential legal issues in the use of social media for business purposes is to have a governance framework, policy and user education.”

Gartner analysts say that nonexistent or ineffective governance of social media exacerbates the e-discovery problem. Although the use of social media in enterprises is on the rise, few organizations have comprehensive governance policies in place for its use. Enterprises need an overall governance strategy for all applications and information in order to reduce e-discovery costs and risks, and this strategy should include content created on social media.

“Social media content is like all other content that is created by companies and individuals and is subject to the same rules, laws and customs,” said Logan. “Policymakers need to keep policies simple when it comes to what should and should not be done online. A good rule of thumb is that whatever the company code of conduct is for in-person encounters, and whatever the rules are for general good behavior and common sense apply in the online world as well.”

What’s Your Policy?

Logan said that the legal landscape around social media remains a patchwork due to overlapping, conflicting and contradictory laws and regulations, in addition to the procedural rules propagated by national and international legislative and regulatory bodies. There are some specific laws and regulations applicable to certain vertical markets that make the governance of social media relatively easy, such as SEC Rule 17a-4. For most other businesses, however, there are no clear rules, and it is up to individual organizations to decide how to use and govern social media. Gartner does not expect there to be clear guidance from courts or regulators in the near future. Therefore, the safest option is to develop a clear policy and apply it consistently.

Logan said that in some cases, it may be appropriate to ban access to social media in the workplace. Indeed, Gartner estimates that by the end of 2012, 50 percent of companies will attempt to block access to some or all social networking sites.

“If, for example, a technology creates content that cannot be captured for archival purposes and that archive is required by law, then the organization must tell employees who are subject to the rules not to use the technology even unofficially,” she said. “(Employees) could do so anyway, of course, because of the free availability of many consumer-grade social media sites, but doing so might violate the conditions of their employment or professional licensing resulting in the most stringent of penalties, particularly in the case of lawyers, brokers, doctors and accountants.”