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Analysis / Enterprise

Social media in e-discovery has finally reached tipping point

As the saying goes, “I’ve seen the future and the future is now.” This was my first reaction after analyzing two recent surveys regarding social media and eDiscovery.

The first one was from Clearwell (now a part of Symantec) and the Enterprise Strategy Group, entitled: “Trends in E-Discovery: Cloud and Collection.”

Beyond examining cloud issues it also queried respondents about the growing impact of social media on electronic discovery. While many of the responses struck me as intuitive, I was taken by the fact that we seem to have crossed over the chasm of social media to the point that this content simply cannot be ignored any longer.

For ages, and perhaps some still today, email was the 800 pound gorilla in the eDiscovery context, often to the dangerous exclusion of other forms of electronically stored information (ESI).

But, in 2011 we’ve now reached the tipping point – with 58 percent of respondents of the ESG survey expecting to manage social media applications as part of eDiscovery, more than double the 27 percent who did so in 2010.

That’s not only a massive increase in one year, but it also moves social media from a fringe element to a mainstream source of ESI. When asked what types of social media applications would be the most relevant for eDiscovery, 79 percent of survey respondents named Facebook, followed by Twitter (64 percent) and LinkedIn (55 percent).

Similarly (and coincidentally), Applied Research and Symantec (who just acquired Clearwell) queried 1,225 senior enterprise IT professionals around the world in a Social Media Flash Poll.

In one of the main findings, the Flash Poll found that social media is extremely ubiquitous in the enterprise environment, with 45 percent of respondents using it for personal uses and 42 percent using it for business reasons. Rating highly were a number of disparate social media devices including blogs, multimedia sharing, business forums and, of course, social networking – both personal (e.g., Facebook) and business (e.g., LinkedIn).

The impact on eDiscovery, while somewhat obvious, is nevertheless a significant challenge for many enterprises.

Initially, the increased use of social media intrinsically means that email isn’t likely to be the sole source of responsive information pertaining to a lawsuit (or governmental inquiry). While this hasn’t really been the case for a while, it’s time for the attorneys scoping eDiscovery matters to face facts and abandon old school notions that email axiomatically equals eDiscovery. For good or ill, our world of potentially responsive ESI simply isn’t that homogenous.

The Flash Poll also honed in on how this increased use of social media is impacting IT professionals. While information governance concepts (compliance with regulations and retention polices – both at 45 percent) rated higher on their risk index, the management of eDiscovery was still a significant (and growing) concern at 37 percent. And, while IT folks are increasingly concerned, it’s safe to say that their attorney counterparts (who have a heightened sense of risk profiling) are even more worried about the impact of social media on the already complex eDiscovery process.

So, what can be done in the face of this changing eDiscovery landscape that used to be dominated by email? First and foremost, it’s imperative to understand your unique regulatory and legal requirements. This facilitates the mapping of new social media technologies and content to the requisite policies that address data mapping and the retention of social media content, either in a proactive sense (i.e., archiving) or in a reactive sense (i.e., litigation hold).

As Glenn Close frighteningly said in her 1987 thriller, Fatal Attraction, “I will not be ignored.” That warning fits the entire social media genre as it relates to eDiscovery in 2011. And, just like ignoring Glenn Close, failing to pay proper attention to social media is done at significant peril to both IT professionals and attorneys alike.

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Dean Gonsowski is a licensed member of The Sedona Conference Working Group on Electronic Document Retention and Production (“WG1”), the Electronic Discovery Reference Model, and teaches a series of CLE courses on various e-disclosure topics. Dean also serves as VP of E-Discovery Services at Clearwell Systems, where he helps enterprise customers deploy best practices as they bring e-disclosure in-house.