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E-Discovery and Social Media in Workplace Investigations

E-Discovery and Social Media in Workplace Investigations

Old tweets, status updates and posts could provide the evidence needed to clear or convict.

With more than 750 million users on Facebook, 175 million registered Twitter users, about 100 million on LinkedIn, and an estimated 4.5 million already on Google+, it’s clear that social media has become part of everyday life for a huge percentage of the world’s population with access to the internet.

More and more companies are using social media to market their products and services and create awareness and a community for their brands. But with all this information exchange comes risk and responsibility, and businesses are learning quickly that communication, in whatever form it takes, may become part of e-discovery during a workplace investigation.

Half of all companies will need to produce material from social media sites for e-discovery by the end of 2013, according to a Gartner report issued earlier this year.

Whether the material comes from company-maintained sites or the personal accounts of employees may make a difference in its availability and how it’s collected.

“Lawyers are starting to realize that information contained on social media sites may be related to litigation and are having to navigate the intersection of technology and the law,” says Rebecca Shwayri, a former attorney and e-discovery expert at Carlton Fields. “Because many social networking sites are owned and controlled by third parties, the preservation issues can be more difficult to manage.”

Social Media Policy and Education

“Unique aspects of social media present additional challenges, but as with an overall information governance strategy, the key to avoiding or mitigating potential legal issues in the use of social media for business purposes is to have a governance framework, policy and user education,” said Debra Logan, vice president and distinguished analyst at Gartner, in a company press release.

Preservation should be part of this policy. Shwaryi says, “If a company is maintaining its own social media page related to its products and resources, information on the social media page should be preserved when there is a reasonable threat of litigation, assuming such information is related to the litigation.”

Getting Evidence from Personal Accounts

When it comes to personal social media pages, however, evidence collection can be more complicated.

“Given the millions of users of social media, it is not reasonable to expect social media sites to archive all information related to users just in case of a law suit,” says Shwayri.  “Most users probably don’t archive their own material because the material is held by third party sites.”

In federal court, a lawyer can issues a Rule 45 subpoena to command the non-party to produce electronically stored information, explains Shwayri. “The subpoena may specify the form in which the electronically stored information should be produced.  Most lawyers will want to request the information in native format so they will have all the metadata related to the e-discovery,” she says.

Uses of Social Media Evidence

Evidence from personal social media sites can be especially useful in certain workplace investigations, including harassment and discrimination.

Shwayri provides an example of a case, EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010), in which a federal court required the plaintiff to produce profiles, postings, and messages from social networking sites that revealed or related to emotions, feelings, or mental states.

“In that case, the EEOC had filed claims on behalf of two individuals alleging sexual harassment. While the court acknowledged that there were privacy concerns, the information from the social networking sites had to be produced given the nature of the injuries being alleged,” she says.

“In employment law cases, information from social networking sites may be particularly relevant to the case because this e-discovery may demonstrate a plaintiff’s state of mind or may contain communications that a plaintiff could have had about the case with third parties,” says Shwayri.

Given the continuing growth in social media sites and users, the need for clear and effective policies governing its use, retention and archiving is clear.

According to Shwayri, “E-discovery from social media will continue to be relevant in cases involving emotional distress damages and employment cases as well as cases in which social media postings are related to the issues in the litigation.”