Social Media Panel: Early Involvement, Where We're Going, What to Do

Social media is here. You know it from your personal life. You know its usage from political uprisings, natural disasters, other world events and the constant call to “weigh in” from news outlets or broadcast programs. And everyone wants to be your “Friend.”

It’s certainly growing in the legal community, too. In 2008, the ABA conducted a study that found that only 15% of lawyers used social media. That number went up to 56% in 2010 and no doubt continues to increase.

If you ever want to see an in-house attorney’s face lose its color, just bring up the subject of a company’s employees having free reign on open social networks anytime, anywhere. But that’s where we are, so now it’s time to discuss its impact in the business and litigation environments to see how corporations need to prepare for its proper usage in the ordinary course of business and prepare to deal with it in the inevitable litigation that will involve it.

That’s why this year’s first Discovery Symposium 3.0 panel discussed the impact of social media. The key factor is that everyone’s doing it, so there’s lots of it – whether on LinkedIn, Facebook, Twitter, foursquare, YouTube, photo-sharing sites, blogs or the dozens of other outlets most attorneys don’t even know exist. Businesses need to become savvy in the areas of usage policies and preserving and collecting this ESI as it becomes necessary for litigation, and to understand its impact on the overall costs of litigation. The E-Discovery 2.0 Blog just posted about these issues in particular and click on for more thoughts from the DS3.0 panel...

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Social media is defined by its interactive nature. It is fast becoming the main means by which individuals communicate with each other and as individuals become accustomed to such interactive communication it naturally creates an impact on business. So how should business respond?

Our first panelist was John Campbell, senior counsel at FedEx Corporation, who spoke about social media policies. Some of the policy considerations or primary concerns a business should ask in creating a policy include protecting your brand and avoiding litigation. One of the main discussion points: What resources will each business allocate to auditing and enforcement of the policy?

One best practice in enforcing a social media policy is to explain how an employee needs to protect themselves, the brand and relationships with customers. Be professional in all that you write. Some companies have posted their social media policies online, which serve as a good basis for what companies need to consider when create these policies. There are several great resources online, including a fresh post from Michelle Sherman of Sheppard Mullin that has some good Do’s and Don’ts and other policy thoughts.

Our other panelist was Vincent Miraglia, chief counsel for employment litigation and e-discovery at International Paper (IP), who focused on the practical responses to the impact of social media on business. Vinnie discussed the limited case law on various social media topics and then dealt with some of the new difficulties in accessing and collecting various social media if called upon to do so for discovery purposes. He also spoke about what IP has done to get ahead of the curve – including creating SM policies and educating employees about them – and their regular internal conversations about these issues.

We all seem to be using social media in some fashion whether for personal or business reasons or more likely, both. We all will need to become familiar with its impact on the business from creating a policy, training employees on it, enforcing it and then dealing with the litigation hold, preservation, collection, searching and review components in the not too distant future.

We need to address these issues in much the same fashion that we needed to learn how to deal with e-mail and other ESI in the last decade. It’s the way we’re heading, and if you don’t currently use social media in some fashion, you will (unless you’re one of the three folks who still send typed written letters via snail mail, in which case you’re probably not reading this anyway).
 

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