I’m frequently reminded in my consulting work that data is everywhere. And if the Russian efforts to hack our election process tells us anything it’s that data -even fake data- can have wide-reaching implications. But have legal operations personnel considered the impact of their social media footprint on company operations, on litigation, on regulatory inquiries?
Recently, I was involved in a matter where two parties sued each other and as might be expected the need arose to collect electronically stored information for discovery. We set about to interview the key players to determine where potentially relevant data might be stored. Turns out the parties did not use and did not even own computers—at least not in the traditional sense. It quickly became apparent that this was not going to be a typical e-discovery project either.
After talking to the client, we learned that any relevant data could only be found on the client’s smartphone, in social media accounts and other web-based media. The same turned out to be true for the opposing party. This was a first for me, and it prompted thoughts about the impact of social media on litigation.
About 4 billion people use social media in one form or another. Quite apart from the cats and babies, which are fine and cute, I’m not confident that when people hit the “post” button they have considered the possibility that what they are posting might become evidence.
It reminded me, too, of a webinar I was part of last year hosted by the folks at Hanzo, the social media archiving service. One of the things we discussed is that social media –its presence and its reach—are misunderstood by many people, particularly in the context of discovery. I made a point then and it’s worth repeating again, that social media is any of a number of interactive, user-generated, shared, collaborative, communicative, or post-oriented and web-based platform with images, video, comments, likes or sharing capabilities. Websites, too, have a social component. And obviously, whether on Facebook, LinkedIn, Twitter, or some more obscure platform, the data posted is sitting there, ripe for the taking. In other words, it’s discoverable.
It’s one thing to post a dancing cat playing piano. There’s probably not a lot a harm in that, unless of course that cat is suing a company for its pet product having caused a broken leg. But many organizations use social media and their websites for brand building, for business development, to communicate content and advertise to customers. And while many companies also have professional marketing people to create and control messaging, my experience is that most do not have policies or practices built around use of social media.
There are huge risks involved and there are legal, compliance and privacy challenges as well. Think about it: Company brands and reputations can be damaged. It’s easy to defame someone. Wrong or improper information could also find its way onto social media platforms. Imagine what could happen if a company’s employees turned against the organization and took to social media. Now imagine what might happen if the employee posts went viral and the company were publicly traded. There’s a potential here for market-moving stuff.
For these reasons, as part of their information technology and governance practices, organizations need to consider developing and implementing policies around social media and web-based content. Some general practices that should guide organizations in the development of social media policies are:
- Respect for others, truthfulness, accuracy and the use of good judgment;
- Concern about content or images that are defamatory, libelous, harassing, discriminatory, promote violence or is otherwise inappropriate or creates a hostile work environment;
- The release of proprietary, confidential or any non-public information that could impact the organization, its clients or customers;
- The unlicensed use of copyrighted material, trademarks, service marks, or other intellectual property, and the crediting of source material;
- The engagement in antagonistic or retaliatory exchanges (think: Twitter battle) that negatively impacts organizational brand or reputation.
These are just a few foundational concepts that should form the basis of a sound social media policy. Some great examples of corporate social media policies may be found here.
As for the client who didn’t even own a computer and whose only discoverable information was on social media? The parties settled almost immediately when a damning social media post surfaced that went directly to the issue in the case.
(This article originally appeared on Above the Law in slightly altered format)
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