Social Networks Could Create E-Discovery Headaches

July 07, 2009

Robert Brownstone, Law and Technology Director at Fenwick & West LLP, was recently quoted in the Technology Law 360 article, "Social Networks Could Create E-Discovery Headaches."

Many companies are beginning to embrace social networking sites like Facebook and Twitter. Conducting e-discovery on data posted to a social network will present an array of challenges. The technology is still catching on, and there hasn't been a major case involving e-discovery issues with social networking data.

Social networks are being used in a number of ways that could involve legal ramifications for businesses. When employees are posting Twitter updates about their company's product, chatting with customers on a Facebook group for fans of the company or just discussing business matters among themselves using one of the sites, there's a chance they may post something that will create the risk of liability or, at a minimum, become relevant to a lawsuit.

Brownstone said he advises clients to think through the degree to which they feel comfortable using social networks for business purposes, then set clear policies for what employees are and are not allowed to post on the sites.

For instance, one component of the policy should be a requirement that anyone speaking for the company identify himself and explain his or her business connection, Brownstone said.

When companies do enforce their social networking policies, it's important to memorialize that enforcement by keeping track of posts that were deleted or other remedial or punitive actions that were taken, so that the company is not accused of selective enforcement down the line, he added.

Companies with strict policies in place will at least have an idea of the sort of relevant information out there. However, when companies haven't authorized employees to use social networks for business or aren't aware of the extent of posting being done by employees, they may face bigger legal headaches when it comes to e-discovery.

Regardless of what a company's policy is, actually tracking down the data from a social network can be a tricky business. Information on social networking sites doesn't reside within the four walls of a company and is likely stored on the servers at the headquarters of Facebook or the like.

In a lawsuit involving employee postings on a social networking site, a judge might well rule that the company has possession, custody and control of the data.

However, that may not be the case in actuality, Brownstone said, given the way the sites work.

If the company has set up its own presence on a social network and has a contractual relationship with the site, getting the needed information could be easier than if an employee were sharing business-specific information via his or her own account. In the latter case, a subpoena might be necessary, and the situation could run up against issues including privacy and the site's terms of use.

To read the entire Technology Law 360 article, click here (subscription required).