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Social Media and Electronic Discovery

By Diana McKenzie & Marty Farrant  |  Posted 06-06-2011 Print

E-Discovery presents a minefield of social media issues for the enterprise.

First, if your company maintains its own Facebook, Twitter, or other social media account as a marketing tool, it should be considered just as susceptible to discovery requests and litigation holds as your email server.  Statements your company makes to the public, as well as the public's feedback to you, are ripe for mining by plaintiffs' attorneys.

For example, if the Twitter page for your company's latest product is covered with user comments discussing how that product has a tendency to send folks to the ER, it's likely those posts will fit the broad scope of a discovery request. Even if you don't own or manage the servers on which these "marketing" accounts are hosted, your company should retain records of everything posted in such accounts.

Because litigants can directly subpoena social media companies to obtain these records, there's no tactical advantage in not retaining these records -- especially because doing so can allow your organization to moderate and monitor public feedback, and take proactive steps to correct potential liability issues early.

Conversely, the information posted on social media sites can also be a treasure trove for defense counsel because unsophisticated plaintiffs often write statements that are in direct opposition to the alleged facts of their claims. However, businesses should tread carefully in attempting to gather this information, as obtaining access to an employee's or litigant's social media posts using tactics such as spyware or creating a false identity can lead to liability for invasion of privacy or violations of the Stored Communications Act, Wiretap Act, or other state electronic monitoring statutes.

Unfortunately, when someone in your organization concocts one of these cloak-and-dagger schemes to conduct surveillance on an employee, they'll likely turn to your IT department's for help. The better practice is to let your company's attorneys subpoena the social media site and insist that opposing counsel place a litigation hold on the plaintiff's accounts to prevent any further editing of past posts.

These are but a few of the potential issues that social media presents to today's CIO. As always, consult with your company's attorneys, or a lawyer knowledgeable in information technology law, well before taking action in any of these areas.

About the Authors

Diana J.P. McKenzie is a partner and chair of the Information Technology and Outsourcing Practice Group at Hunter Maclean.  She can be reached at 912.238.2627 or dmckenzie@huntermaclean.com.  Marty G. Farrant is an associate in the Information Technology and Outsourcing Practice Group at Hunter Maclean.  He can be reached at 912.238.8833 or mfarrant@huntermaclean.com.


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