Nine Tips for Managing Social Media in E-Discovery

Social media presents new challenges for in-house counsel when responding to discovery requests. There are numerous social media sites today, such as Twitter, Facebook, and LinkedIn, and all have different retention policies. This makes it difficult to assess the size of the data and its content, when it must be collected and reviewed for Legal Process Outsourcing and investigatory matters.

In response to in-house counsel's concern about social media, e-discovery solution providers are developing innovative, defensible, and cost-effective social media collection and preservation strategies. Here are nine tips from the experts to help manage risks and meet discovery obligations associated with social media.

1. Start preparing now. The Federal Rules of Civil Procedure state that "any type of information stored electronically" is discoverable, including data from social media. Corporations and counsel should start managing social media now to avoid being caught unprepared.
2. Issue litigation holds early. Timing is critical for proper preservation, so if litigation is anticipated, all relevant social media data should be identified immediately and litigation holds should be issued to account holders and service providers.
3. Obtain consent before collecting data. Social media data is usually retained solely by the service provider, and collecting it without consent of the user can violate federal or state wiretapping laws. Before attempting to access any information from a social networking site, make an effort to obtain the user’s consent or a court order.
4. Be prepared for security issues. When collecting from individual social media accounts, the e-discovery team will typically need to obtain the user’s consent or get a court order in order to access accounts. And, never "false friend" in in order to gain access and surreptitiously collect data. The courts frown upon this practice.
5. Leverage a service provider to collect and review. Social media data collection is similar to existing web collection practices and often utilizes page captures or web crawlers. The volume of data within any given social media account can be overwhelming and will typically require a significant amount of culling to uncover any case-related data. Simple web crawls or screen captures will make life difficult when the time comes to cull out posts that are not relevant to the matter at hand. In light of these challenges, it is best to retain an expert consultant to ensure a seamless process.
6. Organize, document and identify. It is important to identify potentially relevant social media sources and organize all of the accounts, keywords and date ranges that need to be preserved as early as possible.
7. Consider pertinent laws, such as the Stored Communications Act. For example, the Stored Communications Act (SCA) prohibits "Electronic Communication" and "Remote Computing" providers from divulging the content of its users' communications and data. It is important to know the laws that could impact your social media collection and preservation strategy.
8. Don't ban use of social media outright. Social media is a valuable tool for marketing products and connecting with consumers, so companies should not ban usage.
9. Craft proactive policies that encourage prudent posting. In order to leverage the benefits of social media while mitigating the risks it poses for litigation, companies and counsel should craft policies that manage employee use of social media.

Social media is a complex issue in the e-discovery process. Understanding the nuances and preparing for potential issues will help LPO teams to better manage investigations and e-discovery collections.

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