Social Networking Sites Create New eDiscovery Headaches; Raise the Bar for eDiscovery Management and Response

A just released March 2009 Nielsen Company report, Global Faces and Networked Places, makes some startling observations about the rapid adoption of social networking such as blogs, social media sites (Facebook), Twitter and wikis among Internet users. While many may intuitively suspect that the adoption rate of these forms of social networking is accelerating, this report removes all doubt. It highlights that two-thirds of the world’s Internet population now utilize social media sites, traffic to these sites is growing at 3x the rate of other Internet traffic and people now spend 10% of all Internet time on social networking sites.
 
But social networking is no panacea. The Italian government recently declared “war” on these different forms of social networking in an attempt to curb employee sick days and increase productivity. Closer to home in the US, these different forms of social networking are creating new headaches from a corporate and legal view point for organizations already struggling to comply with current legal eDiscovery requests.

Some of this information about the growth of social networking as well as the new legal challenges that it presents were brought to light in a recent Symantec eDiscovery virtual roundtable. The primary purpose of this roundtable was to discuss the new eDiscovery risks that these forms of social networking present to corporations and what steps that companies should be taking now to begin to manage these technologies.

George Socha, the President of Socha Consulting, summarized the two primary technical challenges that performing an eDiscovery on any of these forms of social networking present. First, the methods that these social networking sites use to gather information and then put it together are using tactics that many providers in this industry have very little experience with so they have to figure out what to do with this information. As of right now, they do not yet have the background to manage it.

The other is that there is not just one place where eDiscovery software can go to gather it all and assemble it. Social networking sites are not like a word processing document that contains all of the information needed for that document within that document. Instead social networking sites scatter data across various repositories even though from a user perspective it looks cohesive as it is all presented on a single webpage. But from an eDiscovery perspective, this makes it very difficult to ascertain exactly what information a user could access and actually did view on a page.

Annie Goranson, Discovery Attorney with Symantec Corp, says the situation is aggravated by the fact that social networking tools are much better collaboration options for employees than email so these tools are being adopted outside of defined corporate boundaries. This especially holds true for employees scattered across the globe in different time zones that are working on the same document. While this often enhances employee productivity, attorneys are usually the last to adopt or use these new forms of technology so they are ill-prepared to deal with social networking and do not know where to begin when performing eDiscoveries. 

Greg Buckles, the Founder and CEO of Reason-eD, adds that because the same document is worked on by multiple individuals, it is difficult to know the exact context in which a specific document was viewed or even which version of the document an individual viewed.

Matt Kesner, the CIO of Fenwick and West, said that Web 2.0 technologies make a mess of trying to do traditional eDiscoveries. The information resides outside of your fire wall and you end up subpoenaing a third party to obtain the information. Even then, there is no guarantee you will obtain the records you need. He has been surprised at how few historical records these Web 2.0 companies do retain even if they do provide them in response to a subpoena. Technologies like Twitter further complicate the situation since people communicate in messages that contain 140 characters or less. In these messages, they are using interesting abbreviations and the sender assumes the follower understands the abbreviations in the context of the message of which they were sent.

So what did this panel of experts recommend to get these technologies under control? Kesner recommends that you should first get your arms around it by taking an inventory of what technologies are in use so you understand the data flows in and out of your organization. He suggests that you talk to your sales force since they are often the first ones to adopt these social networking technologies as they are usually the furthest ahead in the types of communication that an organization uses.

David Fong, Qwest Communications Director of Risk Management and Records/Information Management Compliance and the sole user present on the round table, already has to deal with these sorts of issues on a day-to-day basis. What Qwest tries to do is patrol these communications as well as limit the free-wheeling type of communication that individuals engage in. Qwest makes it very clear in its policies that if individuals do communicate using any of these different social networking outlets that they are speaking as individuals and not as representatives of Qwest Communications.

Fong commented towards the end of the round table that going forward he feels increasingly confident that he can use Symantec’s Enterprise Vault to comply with these eDiscovery requests. However he tempers that response with the importance of having a data map in place prior to beginning any litigation. He also encouraged that organizations should first have their corporate counsel quantify the merits of the case before beginning any eDiscovery to ascertain whether or not they have to reach into the social media repositories as part of the eDiscovery.

Socha said establishing the merits of the case prior to beginning an eDiscovery is extremely important because he has seen circumstances where the end game of the opposing counsel was to never be satisfied with what information a company produces. This sends companies into an endless spiral of eDiscoveries as the opposing counsel hopes to force them into a settlement or prompt the presiding judge to issue a ruling of negative inference to the jury.

As this roundtable highlighted, social networking is becoming one of the predominant ways that people interact and communicate with one another both privately and professionally, now surpassing even email as a form of communication in 2008 according to the Nielsen Company report. Further, other recent articles highlight the intangible and tangible benefits that companies are realizing by employing these Web 2.0 technologies. However the issues in regards to eDiscovery when searching the data repositories of social networking sites are still far from settled. So while these issues are sorted out companies are advised to curtail their employees’ use of social networking sites and then only use them in a fashion as defined by company policy.

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