Dec. 2011/Jan. 2012 / E-Discovery
Social And Mobile Media and E-Discovery
When it comes to e-discovery, companies typically distinguish between individual accounts and company-managed media. There has been some over-dramatization about how social and mobile media play into e-discovery rules. The fact is that e-discovery regulations do not pose an immediate threat to corporations. Rather, there is time for legal departments to begin a considered and pragmatic approach to preserving and collecting information from mobile devices and social media.
Relevance of the information should be the primary determinant of whether social and mobile media must be preserved or produced. For mobile content and company-provided social media channels, identical information is often available on central servers. This makes it unlikely that collection from devices and employee accounts will produce unique and relevant information.
Only a small portion of social media actually falls under a company’s “possession, custody and control,” and would need to be preserved and possibly produced. Third-party sites and services used by individuals at their own discretion and for their own accounts may be off limits under the Stored Communications Act (SCA). The law applies to YouTube videos posted as “private,” Facebook and MySpace profiles, wall posts when not available to the general public, and similar content communications. The SCA bars improper access, and it specifies criminal penalties for violation. Courts have quashed subpoenas that would violate the SCA.
The first and best practice for controlling costs is ensuring that in-house and outside counsel fully understand the company’s technologies and capabilities.
