Social media content could be subject to e-Discovery requests

Guest post by Dean Kuhlmann

The rules of discovery, the process by which parties in a lawsuit seek to obtain information by demanding production of relevant data, have evolved over the years to accommodate new modes of communication. Prior to the rise of the Internet and ubiquity of email as a business communication tool, discoverable data typically included physical documents and witness depositions.

As electronic forms of communication took center stage, the rules of discovery were expanded to include electronic evidence such as emails, documents stored on servers, instant messaging data and web content. Electronic discovery (e-Discovery), the process of seeking, identifying and securing electronic data for use as evidence, evolved as a way to manage demand for these new forms of information.

In the 1990s, one of the biggest challenges for companies subject to discovery requests and document retention guidelines was email, which increased the volume of discoverable data exponentially. Companies had to grapple with massive amounts of information and formulate new communications policies. The need for a sound communication policy took on added importance for email since people tend to be less guarded about what they express in informal communication venues than when composing a memo for the entire office.

Since legal rulings emerge in response to new challenges, it took the law some time to codify guidelines for handling new communication forms as evidence. But the overall trend from the courts has consistently been in the direction of including new types of communication in the category of discoverable data. Today, attorneys have clear direction on how to handle discovery when it comes to electronic forms of communication such as email. However, newer forms of electronic communication are overtaking email, posing fresh challenges in e-Discovery arena and complicating the technology required to retrieve it.

Unique e-Discovery challenges posed by social media

Today, social media data is the new frontier in e-Discovery. Social media platforms provide anyone with an Internet connection a venue from which they can instantaneously share information around the world. Social media has revolutionized communications--and communicated revolutions. Platforms such as Facebook and Twitter have also been embraced by businesses, which tap into the marketing and communications possibilities.

But that potential gives rise to unique challenges, especially when it comes to collecting and analyzing data, complying with discovery directives or framing effective employee communication policies. The main challenge is that social media communication takes place on platforms outside the company's control. For example, if employees discuss company business on their personal Facebook pages, their conversation may be directly relevant to a lawsuit. But since the company does not control the account, it can be difficult to access the data to satisfy discovery requests, much less manage the content.

In terms of settled law, information derived from social media platforms is a fairly recent development. Noted jurists such as Magistrate Judge John M. Facciola with the U.S. District Court in Washington, D.C. and U.S. District Judge Shira A. Scheindlin, among others, have become known as pioneers in the e-Discovery arena. Guidelines governing social media data are still evolving in the courts. However, as with email 15 years ago, the trend is again toward classifying social media communication as discoverable.

As Litigation Daily founding editor Alison Frankel noted, "Courts continue to find that when you post to Facebook, Twitter, or their equivalents, you give up the expectation of privacy, even if you've sent private messages or set up restrictions on who can see your profile. Judges are increasingly likely to order litigants to provide access to their social media accounts and to preserve their posts."

Not yet addressed here is the sheer lack of tools available that are capable of technically and defensibly collecting data from social network environments. Many companies are discussing it, while others have released dedicated "connectors" that allow a user to log directly into Facebook, Twitter and other platforms to remotely collect electronic data.

Why companies need to address e-Discovery

E-Discovery is a pressing issue for businesses because e-Discovery requests are becoming more common. According to Gartner, a leading information technology research and advisory company, by the end of 2013, half of all companies will have been asked to produce material from social media websites for e-Discovery purposes. Gartner notes that the rules on social media governance remain unclear for most industries.

Some companies have reacted to the social media challenge by simply banning the use of social media at the workplace. However, this may not fully address the problem. It's difficult to enforce such a ban, and the reality is that social media platforms are the communication tools of choice for a new generation. Some experts believe that a better approach is to combine an employee education program--to ensure a basic understanding of company obligations regarding data retention--with a carefully constructed policy to govern social media use. Technology tools can also help companies manage social media content.

When 97 percent isn't good enough: searching massive amounts of data

Another challenge inherent in the e-Discovery arena is the sheer volume of the data. An e-Discovery case can involve terabytes of data that must be searched for relevant information. In many industries, a data search that results in a three percent error rate is considered acceptable. However, when data is evidence, more rigorous methodologies are required.

In fact, the expertise required to execute an effective e-Discovery scan led Magistrate Judge Facciola, to note that experts may be necessary to gauge the adequacy of e-Discovery searches since the undertaking involves "the interplay, at least, of the sciences of computer technology, statistics and linguistics."

Cooperation is the key

Technology continues to evolve, and e-Discovery companies respond by enhancing the tools needed to manage data in social media and other electronic evidence.  As new tools simplify the process of identifying, collecting and managing information from Facebook and other social media platforms, it's important to remember that, at its essence, the discovery process is still about cooperation between both sides in a legal matter. Cooperation is crucial in e-Discovery efforts as well.

The cooperation aspect is amplified when e-Discovery takes place on a social media page that is outside the control of the corporate entity involved in a lawsuit. In these cases, cooperation is a primary method of gaining access to relevant data; typically, the person who generated the social media content provides access to the information by revealing the password to allow the e-Discovery process to go forward.

Judge Scheindlin underscored the importance of cooperation between parties in a recent ruling, in which she noted that counsels' failure to communicate upfront complicated an e-Discovery case and resulted in the unnecessary expenditure of significant time and resources on both sides.

As e-Discovery solutions advance to meet new technical challenges such as social media, ultimately, the success of e-Discovery efforts depend on a decidedly low-tech concept: cooperation between the parties.  

Dean Kuhlmann is vice president of business development for Lateral Data, a Houston-based software development company focused on the e-Discovery market. Mr. Kuhlmann has more than 24 years of sales, consulting and executive management experience in the e-Discovery, legal and technology industries.