A guest-post by Michelle Sherman
Companies are on social media. They are interacting and connecting with customers through Facebook, Twitter and blogs. In a 2010 study, numbers on the conservative side show that 65 percent of Fortune Global 100 companies have active Twitter accounts, and 54 percent have Facebook fan pages. One third of these companies have a blog. This is how companies are doing business today. And, with this online presence comes legal obligations to capture and save these communications.
These obligations can seem daunting, but when broken into four areas of action, or the four corners of social media and eDiscovery, any organization should be able to meet this new challenge.
1. Discovery Rules Apply To Social Media Activity
These communications and online activity should be thought of as an extension of “electronically stored information” (“ESI”) and the discovery rules that apply when a company is in a legal dispute that would trigger a duty to preserve company emails and electronic documents. When the Federal Rules of Civil Procedure were amended in 2006 to include ESI, the term was “intended to be read expansively to include all current and future electronic storage mediums.” It does not matter how brief the storage period, courts will treat the information as discoverable. Accordingly, even storage in the cloud or on a social networking site will be treated as discoverable ESI.
To summarize the eDiscovery rules, there is a duty to preserve relevant or potentially relevant information once litigation is pending or reasonably anticipated as long as it is in your custody or control. For the party filing the legal action, the litigation hold and “do not destroy” notice should be triggered before the complaint is filed. “A duty to preserve evidence arises when there is knowledge of a potential claim.” Micron Tech. v. Rambus, 255 F.R.D. 135 (D.Del.2009), affirmed in part, rev’d in part, 645 F.3d 1311 (Fed. Cir. 2011).
A recent study found that courts are imposing strong sanctions against attorneys and their clients for failing to comply with the eDiscovery rules. In a study of 401 cases before 2010 in which sanctions were sought, sanctions were awarded in over half of them. Some of the sanctions were especially severe, and included case dismissals, adverse jury instructions and large monetary sanctions. Five million in sanctions were ordered in five cases, and $1 million or more in four others. Defendants were sanctioned for eDiscovery violations nearly three times more often than plaintiffs, and the number one reason for imposing sanctions was failure to preserve electronic evidence.