This post, and future posts will be hosted on the official Hudson Legal Blog, but this one is re-posted here in case anyone is still following this feed.
I’m speaking next week at the Marcus Evans Social Media Legal Risk and Strategy conference in San Francisco. I’m excited and honored to have the opportunity to share my thoughts on the impact of social media on e-discovery alongside a very impressive group of attorneys, who will be speaking on a variety of legal topics related to social media.
In e-discovery circles, social media has recently become one of the hottest topics, and with seemingly good reason. It’s without question that communication is shifting to social media at an incredible clip, and it may not be long before email is surpassed as the primary means for written electronic communication. It’s also without question that this hasn’t happened yet for business communications.
A distinct pattern, not immediately obvious, began to emerge as I read through the surprisingly large number of social media e-discovery decisions in preparation for my presentation. Yes, there’s a solid amount of precedent already, but the central questions of fact in those cases almost universally revolved around a single individual’s physical condition or state of mind.
This makes intuitive sense. While people are likely to share personal info on a social networking site – e.g., to describe their physical health or mental state – it’s far less likely that important or sensitive business material would appear here. Most businesses do have a social media presence, but its content is calculated and intentionally public. In other words, a company’s social media content is probably the last place you’d find a smoking gun.
Part of this depends on how one defines social media. There are internal corporate environments under the umbrella of what’s being called “Enterprise 2.0” with social features, such as internal blogs and wikis, and arguably SharePoint. But from an e-discovery perspective, these environments are not dissimilar to other shared resources under corporate control. And where things are complicated by the fact that this type of service is stored in the cloud, I’d call that a general cloud storage issue and not a social media-specific issue.
Think about the types of cases where e-discovery is really important. The ones with huge volumes and incredible costs, without which the need for innovation would not have been so great and the entire industry may not have existed. These are the antitrust second requests, the bet-the-company patent litigations, the multidistricts and the government investigations. They’re not the personal injury, employment discrimination, and defamation cases in the social media e-discovery caselaw to date.
In the near future, we may see more business content intertwined with the social media space. Google Plus, for example, promises to not only provide for private workspaces alongside personal social content, but also to deeply integrate social and web content. Things are going to get a lot more complicated. But for the moment, social media is more of an e-discovery novelty that’s fun to think about than a serious e-discovery problem for corporations.