We’re readers and supporters of eDiscovery Journal and this past week Barry Murphy posted an interesting hypothetical on social media e-discovery in which Facebook does not delete data that it had been directed to delete.
This is a real concern. By going to Facebook to get data in an electronic discovery context, if the corporation finds social media data that had not been deleted, it would need to be reviewed for relevance — and potentially produced.
But, if the corporation NEVER went to Facebook to get the data, then there is no exposure to data thought to have been deleted. The parallel is sending paper to a shredding company — corporations pay for the certificate of destruction, not the actual destruction. If the shredding company doesn’t shred it and keeps it, the company is under no obligation to review those documents — unless they go visit the shredding company and there find out it still exists.
So how can a corporation avoid going to Facebook for collections? By preserving beforehand in a private, secured archive that is under the corporation’s control.
With full command over what the corporate social media property looked like at any particular point in time (see Jim’s excellent post on developing a timeline of a social media archive), corporations can expire or hold whatever data they chose to, and fulfill their social media e-discovery obligations without exposure to all of the additional data Facebook is preserving — not just data that hadn’t been deleted, but other data sources including user generated content.
It is naive and inviting disaster to expect social media platforms like Facebook, Twitter, Tumblr, LinkedIn, and dozens others to provide corporations with social media e-discovery support. Those companies have a lot of other issues they are worrying about – sorry, folks ain’t gonna happen. Fortunately that’s a definable challenge, that if solved provides many of the virtuous benefits of good information governance.
Now about the challenge of corporate employees doing things on those social media properties they shouldn’t, that is a whole different ball of wax. And one where the lawyers should be spending most of their time.