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Corporate Counsel Connect collection

August/September 2012 Edition

Managing electronic discovery in a Facebook world

Craig J. Blakeley, and Jeffrey H. Matsuura, Alliance Law Group LLC

Craig Blakely and Jeffrey MatsuuraUnless you have been in unbelievably complete isolation for the past few years, you are aware of the dramatic growth of the Facebook phenomenon, the exponential expansion of the reach of this and other social media into society. You have likely seen many of the statistics documenting social media development. Our favorite of those statistics is the assertion that, based on the enormous number of Facebook users, if Facebook were a country, its population would make it one of the most populous in the world!

Although social media are booming among personal users, they are extremely widely used for business purposes, as well. Many information technology industry observers, Gartner Research for one, contend that social media may grow to rival electronic mail as the communications system of choice for a notable number of businesses within the next few years

The dramatic expansion of business use of social media has important implications for corporate counsel in a range of contexts, including litigation. Social media in all forms, including popular Web-based communities such as Facebook and LinkedIn, as well as blogs, instant messaging networks, and user-generated content systems (e.g., YouTube), all generate and process electronically-stored information (ESI). In cases such as, Equal Employment Opportunity Commission v. Simply Storage Management LLC (S.D. Ind. May 11, 2010), courts have recognized that social media content is subject to the standard rules of discovery governing ESI. Accordingly, all corporate policies, practices, and procedures addressing ESI must take into account social media operations and content.

Corporate document management and retention policies and procedures must effectively address social media. In the context of discovery associated with litigation, the basic concerns of document preservation, collection, review, and production must be effectively managed for social media content, as well.

Often, effective processing of social media materials is made more complex by the fact that the materials are stored in facilities owned or controlled by other parties, such as Facebook. Recognizing the need to make complete records of social media content accessible in situations such as discovery associated with litigation, the leading social media site operators have generally implemented systems that facilitate access to the content of specific accounts. For example, LinkedIn provides online consent forms through which its users can authorize third party access to their accounts. Facebook provides an application through which its users can download all materials that have been posted on their Facebook accounts. Corporate counsel should become familiar with the methods available to review and access all social media content created by its employees and agents, regardless of whether that content is processed and stored through systems controlled by that corporate organization or by third parties.

When litigation is pending, corporate counsel must make sure that all relevant social media content generated by employees and other agents is identified, collected, preserved, reviewed, and produced. Open online searches should be conducted along with searches directed toward the specific social media communities and systems used by the parties involved, including relevant employees. When relevant material is identified, it should be preserved in electronic form, with appropriate documentation of date and source. In addition to identifying and reviewing documentation associated with its social media content, organizations involved in litigation should also research social media content generated by other parties to the litigation, and by possible litigation witnesses.

The most effective preparation for management of social media content during litigation is to implement overall records identification, retention policies and practices that enable the organization to inventory, access, and analyze all social media activity of its employees and other agents at all times. Today, the scope of social media activity for many businesses is significant and the rate of expansion of that activity is substantial. In this environment, waiting until litigation forces active social media content management is not a sound strategy. Instead, corporate counsel should act in advance of litigation to ensure that the policies and procedures of their organizations provide for the effective management of all ESI, including social media content, generated by their employees and other agents.

About the Author

Craig Blakeley is an attorney with the law firm, Alliance Law Group. For more than 25 years, he has provided counsel on the legal, regulatory, and public policy issues affecting the creation, distribution, and use of telecommunications, computer, and digital media technologies and services. Mr. Blakeley has written and lectured extensively on information technology law topics around the world, with publications on issues in law and technology including Global Information Technology Law which discusses telecommunications, Internet, e-commerce and e-government, and intellectual property issues in 22 countries.

Jeffrey Matsuura is Of Counsel to Alliance Law Group. Mr. Matsuura previously served as Assistant Professor and Director of the Program in Law & Technology at the University of Dayton Law School in Dayton, Ohio. Mr. Matsuura has written and lectured extensively on information technology law topics around the world and is the author of numerous articles and books on issues related to law, policy, and technology including Global Information Technology Law. He previously served on the faculty of the University of Dayton School of Law, where he directed that institution's Program in Law and Technology, and as a research fellow at the University of Edinburgh and the Smithsonian Institution.