Study Paints Chilling eDiscovery and Social Media Picture

While social media is fast becoming a permanent part of the corporate communication landscape, there is increasing concern about how unprotected and uninformed most businesses are about eDiscovery risks posed by popular social media tools like Twitter, Facebook, and cloud-based applications, just to name a few.

In its report of a study by the Economist Intelligence Unit for Deloitte Forensic Center, InformationWeek.com noted that:

• 66% of businesses are worried about eDiscovery risks posed by social networks

• 33% of businesses believe that they’re partially prepared to handle these risks

• 25% of businesses admit that they aren’t prepared at all to handle these risks

• 25% of businesses weren’t sure if c-level executives had any awareness of the risks associated with meeting eDiscovery requirements

• 16% of businesses admitted a total lack of eDiscovery awareness at the c-level

• Collaboration between legal and IT teams – which is vital for effective and efficient response to eDiscovery social media requests – is alarmingly poor, with only 13% of survey respondents claiming that the two camps work “very well” together, and 33% claiming that that they don’t even know how they work together

• 33% of companies lack a “discovery response team” that works together to fulfil eDiscovery requests

Of course, these dismal statistics above would be academic were it not for the fact that:

• There is an increasing frequency of requests for eDiscovery content stored on corporate social media networks

• The nature of social media content is increasingly complex and layered as more employees use these tools to do more things

• The courts can (and do) impose sanctions on businesses that fail to respond properly to eDiscovery social media requests, just as they sanction employees who provide misleading or outright false testimony due to ignorance of their employer’s eDiscovery processes and standards

All of this creates a bottom line that, while still chilling, is at least clear: Businesses today must create secure systems and train cohesive cross-functional teams (IT, legal, HR, etc.) to respond quickly, accurately and completely to eDiscovery social media requests — because as the courts have signalled (and will continue to do so in scathing judgements and commentaries), ignorance and incompetence are no longer a viable defense; in fact, from now on, they’re a indictment.