A recent survey by the eDiscovery Journal revealed that less than 20 percent of respondents have a plan to preserve and collect social media. This is troubling because “by year-end 2013, 50 percent of all companies will have been asked to produce material from social media websites for eDiscovery,” according to Gartner.
But preserving social media evidence is challenging. The social media landscape is dynamic and transient. It can also be complex: a single post can incorporate several different platforms, such as a Facebook post that is simultaneously tweeted and linked to a YouTube video. Moreover, unlike internal e-mail and document systems, social media sites are hosted in the cloud. Additionally, employees may use personal devices or profiles to perform work-related tasks. For instance, a recruiter could connect with candidates through her LinkedIn account.
To prepare for these challenges, organizations should follow several best practices for incorporating social media into their litigation readiness plan.
1. Find out how your organization uses social media. Inventory the social media sites used throughout the organization. For each site, determine the custodians, their departments, and the types of data they create. Record this information on the organization’s data map.
2. Incorporate social media in your records retention policy and litigation hold templates. Including social media in the organization’s records retention program will help manage the volume of information stored, thus saving time and money in discovery. When setting the disposition schedule, review legal requirements to preserve social media, including regulations and rules instituted by the SEC, FDA, and FINRA.
3. Meet technical challenges with the right discovery tools. Traditional e-discovery tools cannot handle the collection and processing of social media, and manually printing images or capturing screenshots is time-consuming and costly. Instead, work with IT to establish a preservation and collection protocol. Look for tools that can not only collect but also can authenticate the evidence, create a chain of custody, capture metadata, and search and index across multiple accounts and sources. Finally, collect the data in a searchable and producible format to ensure data can be culled, tagged, and exported to review platforms.
Scrambling to establish a social media policy after a matter arises is imprudent: it can lead to indefensible decisions and incomplete collection. Establishing a policy up front will set proper expectations for the business units and employees who have to share data from their social media accounts as well as for IT, which must work closely with legal to ensure all pertinent data is captured.
About the AuthorMore Content by Lori Stoni