How to Defend Against e-Discovery Surprises with a Social Media Plan

By Michael
October 29, 2010


Social media sites like Facebook and Twitter have created headaches for organizations concerned about complying with future requests for electronic information during the discovery process in legal proceedings. What’s particularly worrisome is that many of the issues surrounding social media and e-discovery have yet to be resolved by the courts. That leaves organizations in the dark as to how they should address them.

As ambiguous as the situation is, one proactive step organization’s can take to acquire a measure of protection when confronted with e-discovery requests that encompass social media activity by its employees is to formulate a social media plan. What should such a plan entail?

Shireen Ali, an e-discovery expert in Toronto, wrote a great article on e-Discovery and social media that I highly recommend. She summarized 9 key points at the end of the paper that I would like to share with you now. She recommends that the plan contain these elements:

  1. Create a program to educate employees at all levels of the organization about the benefits, risks and repercussions of social media use. It should include an explanation of what is defamatory or inappropriate material.
  2. Choose someone to be the organization’s point person on social media. That person’s duties should include keeping current on developments in the social media space, as well as keeping tabs on mentions of the organization in it.
  3. Create a data map of the social media sites visited by employees. It can be valuable in arguing that information from the sites is outside the bounds of an e-discovery request.
  4. Map where social media data resides in order to comply with court instructions to prevent the data’s destruction.
  5. Set retention and disposal rules for data stored in a private “cloud.”
  6. Identify the department responsible for overseeing social media data as part of a litigation readiness program.
  7. Make the organization’s written social media policy short, simple and concise. Make sure it conveys that the rules in it describe conduct and do not describe every form of misconduct.
  8. Bar the disclosure of trade secrets, as well as confidential and sensitive information. Make clear which documents and statements made by workers are privileged and which are not.
  9. Document best practices and update plans and policies regularly to reflect changes in the social media environment.

What social media policies have you put into place at your company? Do you think that to onslaught of social Web site is making e-discovery policies harder to enforce? Or should companies ban the use of social media at their companies all together?

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