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E-discovery Risks in Social Media Use for Companies

By Stephanie Robinson

Many companies today have their own company Facebook Pages, Twitter accounts or blogs. It is estimated that 4 out of 5 companies with more than 100 employees will utilize social media platforms to communicate with their current customers and to market to potential ones. These companies understand the value of participating in the online marketplace. What is not widely understood, however, is that companies are obligated to store and maintain social media communications as ?electronically stored information? or ESI in the same way as they are obligated to store e-mail or written communications. Courts require companies to have document retention policies in place to allow the companies to access and produce such ESI during the discovery phase in the case of litigation. Many organizations are either unaware that their current document retention policy does not include social media, or they rely on the social media platforms themselves to maintain social networking communications for them. The problem with relying on the social media platform to maintain your company?s communications is that these platforms are typically not under any obligation to do so. Before a company chooses a strategy of ?let Twitter manage our communications, and if they lose some, we?ll just tell the court we don?t have ?em?, organizations should be aware that courts are increasingly penalizing such attempts to avoid responsibility with harsh monetary sanctions. Companies should revise their document retention policies to include social media communications if they wish to avoid the risks of discovery sanctions. From a technical perspective, there are some vendors emerging with monitoring and storage services designed to maintain social media compliance with document retention policies. Organizations should understand their use of social media platforms, and work with their legal and IT teams to determine the best method for storing and maintaining social media content and communications....

Full post as published by Business and Technology Law on February 07, 2011 (boomark / email).