With social media now a mainstream communication tool, there's concern about to collect and preserve its content in the event of eDiscovery. The practice of collecting and preserving it, however, is extremely immature. Just because Social Media isn't the dominant source of eDiscovery today doesn't mean that companies shouldn't address it as part of a holistic eDiscovery strategy.
And even though the practice is still young, bear in mind that in a survey on the Cloud and eDiscovery recently conducted by the eDJ group, 15% of respondents said they have had to collect content from a popular social media service.
Applying case law to social media collection and preservation
The legal community typically waits for case law to establish the rules of the game. There's not be an overwhelming amount of case law on social media, but one important case is—Gordon Partners, et al. v. George S. Blumenthal, et al.—where the court has required a company to provide its social media content, making it an expensive and time-consuming afterthought for the unprepared. The main idea in that case was that if a company has "access to documents to conduct business, it has possession, custody or control of documents for the purposes of discovery." In other words, companies are on the hook for eDiscovery of social media.
In order to best be prepared for eDiscovery of social media content, companies need to create rock solid social media usage policies and put in place an eDiscovery collection and preservation plan.
Sounds simple, right? Neither of these things is easy to do.
Creating social media policies
When it comes to social media policies, there's not much prescription from case law or Federal Rules. The National Labor Relations Board (NLRB) does offer some guidance, although it's relatively vague, on policy creation. According the NLRB, employer policies "should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees."
In addition, company policies must be specific and include examples. A general policy that advises employees not to post company information on social media sites is not as good as a specific policy that prohibits posting trade secrets and offers an example of what a trade secret might be. When creating a social media usage policy, be sure to at least include:
- Clear specifications on acceptable use of social media for business purposes, such as disclosing affiliations when posting or use of dedicated company-specific profiles.
- Guidance on acceptable use of company social media profiles for personal reasons, such as how to handle political, religious or other potentially controversial topics
- Clear rules on whether and how employees can use company intellectual property (e.g. company logos, trade secrets) in personal usage of social media
- Prohibition of disclosure of confidential information - clearly defining what is confidential and providing ongoing training.
- Ramifications for policy violations; companies must be sure to state what will happen in the event of a violation and follow through in the event one occurs.
The onus will be on legal teams to determine what social media content relates to business versus what constitutes personal use. To do that, be very clear on social media usage policies that outline what is acceptable use of social media on company-owned property (e.g. computers and other devices, network bandwidth).
Putting a collection and preservation plan in place
When it comes to the actual collection and preservation of the content, companies have several choices, and each has its pros and cons. Here are some of the choices:
Companies can set up web crawlers to capture content from social media sites at various intervals. Most of these systems store social media content as static web pages.
- Cannot do complete compliance capture
- Only support point-in-time capture
- Not likely to be a long-term solution for social media collection and preservation
Companies can set up programs that will essentially take a screen shot, or screen scrape, of a web page and then store that image as a record of the page at that point in time. In most cases, the image will be converted to a PDF (or similar) file so that it can be indexed and searched within a preservation repository.
- Lacks metadata capture
- Requires extra work to prove authenticity
- Requires processing of the image for indexing and search
- Not likely to be sufficient for more than one-time, reactive projects
Publisher Application Programming Interfaces (APIs)
The major social media publishers have APIs that third parties can write to in order to enable collection directly from the publisher. By writing to an API, it's possible to capture all of the data and metadata that the publisher makes available - like a FaceBook page - and then map that data back into a preservation repository.
- Allows for full capture of all content and metadata from social media publishers
- Can capture off-network social media activity
- Complex configuration
- Need to keep up with API change
- Consider the bandwidth required to monitor and collect high-volume social media content (third party aggregators can minimize the impact)
In the context of collecting and preserving social media, a proxy approach is one where a company requires employees to interface with social media through a proxy server so that interactions can be monitored and captured.
Allows for on-network activity to be monitored and quarantined, if necessary
- Does not capture off-network social media use
- Potentially complex configurations and ongoing management
The most comprehensive approach to social media collection and preservation would combine the API and Proxy methods. This would ensure complete capture of all of a user's social media content. However, today, that approach is probably overkill for anyone but the most highly regulated organizations.
In order to determine what method(s) to use for social media collection and preservation, companies must first answer several questions so as to define requirements.
- Are there regulations that mandate that we monitor the social media activity of any employees?
- Will we proactively archive and manage social media or only collect and preserve when litigation appears imminent?
- How many employees can we reasonably anticipate needing to ever collect and preserve social media from?
- Do we want employees to know they are being monitored and/or collected from?
More than likely, companies will need to employ a variety of collection and preservation techniques depending upon the specific circumstances of a given case. The best next step for any company is to define now what a reasonable effort to collect and preserve social media is. For some, it will be web crawling at defined intervals; for others, it will be forcing users through a proxy server. Ultimately, companies will need to keep up with emerging case law and be sure to include social media within broader eDiscovery strategies.
Barry Murphy is a thought leader in all things retention - eDiscovery, records management, and content archiving. He is the co-founder and CEO of EDJ Group.