Social Media and eDiscovery – 8 Lessons Learned So Far

Social Media and eDiscovery - 8 Lessons Learned So Far

Social media is impacting eDiscovery enough that many companies have instituted a proactive approach when it comes to developing their online presence. For example, a business called First Command Financial Services maintained no social presence online until late last year. Before launching their corporate LinkedIn, Facebook, and Twitter accounts, they consulted closely with a compliance team in order to develop a sustainable infrastructure going forward. And they’re not the only ones. Here are eight lessons learned so far about the overlap of social media and electronic discovery.

1. Know the Terrain

Understanding the stakes at risk before embarking on a social media campaign is essential to protecting your assets. There are a number of advantages in maintaining a strong online presence, yet there are risks as well, especially when it comes to eDiscovery. Learning those risks before developing an online presence will help reduce vulnerability.

2. Have a Plan

Implement a social media strategy that’s designed to take advantage of the business potential inherent within the platform, but which doesn’t leave you vulnerable to litigation risks. Work out policies regarding usage and retention before eDiscovery ever comes into play.

3. Work Within Compliance

Staying within the compliance framework when developing a social media presence online prevents unpleasant surprises later on. Regulators advise companies to take eDiscovery seriously within the social media context, and smart companies are the ones who follow this advice.

4. Utilize Available Tools

Largely as another layer of protection in case of litigation, hosted social media management is gaining in popularity. This type of platform is designed specifically to assist with electronic discovery, including archiving and post surveillance. Taking advantage of the tools that already exist to aid in compliance can save companies both time and money.

5. Move Beyond Policy

Although studies show that nearly 80 percent of companies surveyed have written policies already in place to address many aspects of social media, the majority of those companies lack archival and supervision measures. Expanding policy to include action rather than just words is crucial to ensuring compliance.

6. Stay Informed

One of the primary reasons companies lack a comprehensive strategy regarding the use of social media is because existing regulations themselves lack clarity. This is certain to change in the very near future, however, so be sure to keep yourself informed on any regulatory changes.

7. Follow Industry Regulations

The Financial Industry Regulatory Authority (FINRA) Regulatory Notice 10-06 requires that records be kept of social media communications. Similarly, the Securities and Exchange Commission (SEC) also has rules in place for financial advisors who communicate with clients through social media. Even if your industry policies don’t address social media specifically, make sure to maintain compliance with their other communication guidelines.

8. Separate Private vs. Public

The majority of social media accounts are held by individuals and are used on a personal, rather than corporate, level. Putting policies into place that help separate the professional and personal social media lives of employees can save confusion later on.

Although the eight tips listed above are a good start, the game is changing on a nearly daily basis. Courts are increasingly viewing social media posts as admissible evidence. Companies that act sooner rather than later in developing a social media strategy with regards to eDiscovery will always have the upper hand going forward, ensuring that future legal costs can be constrained.

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