The popularity of Social Media and e-discovery are both at an all time high. According to insidecounsel.com, Americans are spending 1/5 of their time online using social medial sites like Facebook or Twitter. These online platforms have now replaced email as the preferred method of communication. Also, nearly 80% of the Fortune 100 companies are using some form of social networking to market their products and reach customers and build relationships.
Even though there is tremendous value in social media marketing for companies, there is also risk. These ten simple issues we raise will give you something to consider as you map out your company's social media policies:
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Chatting about the company:
Do not allow your employees to discuss sensitive business related content online. It’s risky. If your company is involved in a sensitive deal (or litigation), then giving away any information may cause the deal to bust - or you may hear about it in your court proceedings.
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Know the law:
Often companies have attempted to bring information they’ve acquired online, yet the laws concerning social media create new headaches, and many are yet to be developed. Refer to Federal Rules of a Civil Procedure for best practices of e-discovery.
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Early Detection:
Having an e-discovery auditor is an excellent way to foresee future problems BEFORE they develop (such as an employee who “surfs the net” and loiters on social media sites or “friends” fellow problem co-workers). An auditor will help you address potentially damaging rumors or concerns before they get out of hand.
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Social Media Agreement:
In an effort to protect your company’s interests, why not have a signed agreement with employees to limit what they say about he company publicly (online and offline)? “You can’t do that!” you may think. Are you sure? Why not? All company data, and activity within the work “space” may be considered confidential. It’s worth considering.
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Its Simply Different From Paper:
Electronic data isn’t the same as paper data. It is untouchable, invisible, yet it’s there. Metadata stores the date, time and other info and can be crucial in proving your case. It can't be easily shredded or discarded like paper. Know your company devices and develop a data storage and management plan.
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Get a 2nd (or 3rd) Opinion:
Make sure you are constantly questioning your legal team about evolving social media policies and cases. As you know, this is a world that is literally changing on a daily basis. You need to make sure you have a team of experts both within and outside your company who you can turn to for advice or guidance at any given time. It's well worth the investment.
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Take It Seriously:
Just because something was written in cyber space, doesn’t mean it is not important or valid. Using a social media platform opens the user to a broad audience. When utilizing social media all employees should be aware of who could be potentially reading their posts. If the employee makes comments in a post or article that could be potentially damaging or used against them or the company in the future, it could spell trouble.
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Multiple Electronic Devices:
Devices such as smart phones, tablets, or email accounts all now can be used for social media activities – and can also contain metadata. Previously, access to this info was not always legally (or technically) readily available, but now it can potentially help (or hurt) your case.
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New Federal Laws:
We now have laws that allow the use and disclosure of social media e-discovery information and how it can be used in court. Make sure you are familiar with the latest rulings.
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Find the Right Partner:
Taking on the task of e-discovery in the new social media world can seem like a monstrous job, but there are firms (such as TERIS) who specialize in this field. We're happy to provide a no-obligation initial consultation to help you evaluate your current social media e-discovery program and determine what steps you need to protect yourself for future developments.
The current start up garnering the most buzz beyond the tech industry is Pinterest, a social network which is revolved around sharing, liking, and commenting on pictures discovered on blogs and around the Internet. Users can create "Pinboards," which have a collection of favorite pins from Pinterest's extensive archive. Also, users can upload their own content and interact with other "pinners" on the network through likes and comments.
Tech blogs and news sites alike have reported about the record popularity of Pinterest, and now, small businesses are starting to see how they can use Pinterest to advertise their services. While retail and other visual-driven businesses will probably benefit the most from Pinterest, more traditional businesses like law firms can also benefit from the social media aspect of Pinterest.
How exactly can a lawyer benefit from an image sharing social network? The place is a wealth of information that can be used in a variety of different ways. Here are some ideas to consider:
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Pinboards can be about anything or anyone, which makes them a limitless source of ideas to jump start from. Law firms which specialize in business can have a Pinboard about recent business news, where to find affordable business supplies, and so forth. Or, maybe there's a lawyer who specializes in copyright--he could dedicate an entire Pinboard to copyright news, since it is such a hot topic currently.
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Social media is all about being, well, social. People interact with each other whether they are a few miles apart or a few hundred miles away while on websites like Facebook and Twitter, and Pinterest is no different. Lawyers can use Pinterest to interact with other lawyers in a more innovative and visual way.
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While being social is good, Pinterest can also serve as an in-office way of sharing ideas and plans. Create a Pinboard for employees for an in-office newsletter, or perhaps the owners of the firm could swap ideas for new office furniture and interior design plans.
Of course, Pinterest can be used the "old fashioned" way, and that's collecting cool ideas and pictures which can be used to spark new ideas for blog posts, newsletters, email campaigns, and other social media content. Saying Pinterest is only a hobby and should be only used by tech-savvy users and small businesses is going to seriously hurt any business wanting to reach out in social media in the near future.
Pinterest's future is looking rather bright, especially with CNET reporters saying the image-sharing site could even be a big contender for a whole new e-commerce movement. After all, Facebook started out as a "hook up spot" for Harvard students and grew into the most popular social networking site in the world, while becoming a serious staple for anyone looking into marketing online. Pinterest is on the right path to becoming the same.
Litigation newsletters, blogs and case law are full of cautionary tales about eDiscovery gone wrong. Hard drives that were reformatted, backup tapes that were lost and files that were never collected have cost dozens of companies millions of dollars in sanctions. In other cases, discovery disputes slow the pace of the litigation to a crawl, adding time and money to the outcome. Keeping the pace of the litigation moving is the one of the most effective way to lower the cost of eDiscovery in a small case. 
- Inventory what you have. As soon as you can, determine the "who," "what," "how," "where" and "when" of your client's records. Identify who the key players in the case, and talk to them to find out what software applications they use and how they use those applications. For example, does a user overwrite monthly reports in the ordinary course of business, or does she create a new file for each monthly report? Identify locations where these files stored, such as network drives, hard drives, databases and portable devices. Determine when the files related to the case would likely have been created and/or modified.
- Preserve the files. Nothing bloats a cases's timeline, costs and attorney fees like a claim of data spoliation, so make sure to preserve the files you have.
Issue a written or e-mailed "litigation hold notice" that informs custodians of their duty to preserve their records while the case is pending. Identify the date range and types of files that need to be preserved. Require custodians to acknowledge receipt of the hold notice and to affirm that they will comply with the request. Provide them with your name and contact information so they can call or e-mail you if they have a question about the kinds of records that need to be preserved.
Include your client's IT employees on the hold, and talk to them about the most efficient way to preserve and produce copies of the company's files. Isolating a backup tape from the date range at issue helps prevent a spoliation charge, but restoring data from a backup can be costly.
- Act early and proactively. Meet and confer early with opposing counsel. Rule 26 of the Federal Rules of Civil Procedure requires counsel to meet and confer about the scope of e-discovery within 120 days of the date the defendant is served, and many states have a similar requirement. Don't wait until the 119th day to meet and confer with opposing counsel. Be proactive and act early.
- Use your client's IT staff instead of hiring an eDiscovery vendor. Keep costs down by using inhouse resources to preserve and collect files. If your client's IT team has the know-how to copy hard drives and transfer files, you can save thousands of dollars by letting them take the lead on data collection. Put one person in charge of the process, and make sure he or she documents, step by step, the work that the team does on the case.
- Go native. In a small case with very little data, exchange native files with opposing counsel. You'll save your client the cost of processing the native files and converting them to pdf or tiff files. Save an unaltered copy of the files as they were collected in case a file's integrity is called into question. In most cases, however, it's the content of the files, not the way they were collected, that makes up the meat of the case.
