Can Social Media Play a Role in E-Discovery?

The 21st century and the rise of online services has had impact on almost every aspect of business. From cloud computing to online retail, most areas of the commercial world have touched upon the power of the internet and the advantages it can offer.

One particular field which the web has influenced in some way is information retention, particularly in terms of e-discovery. The concept, also known as electronic discovery, is defined simply as documents in a digital format which are prepared or needed in relation to a legal case.

Due to the important role that such files can play in the dealings of businesses, it is unsurprising that the past few months have thrown up some debate around e-discovery, particularly its relationship with social media.

This issue was always likely to emerge, particularly when you consider the amount of firms now making use of social media tools. As an example, research commissioned by the US small business insurer Employers revealed that around five million growing firms on the other side of the Atlantic are using social media in some way. In addition, the Small Business Opinion Poll suggested that 59 per cent of respondents believe they have benefited from a social media presence.
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So, if companies are reaping the rewards of the web-based platforms, what is the problem? Well, according to Jeff Seymour, leader of the north-east analytic and forensic practice for Deloitte Financial Advisory Services, the use of the platforms means the demands of e-discovery are on the rise.

"Facebook and Twitter have not only become more prevalent in employees' personal lives, but have also become more accepted in the workplace, as companies are beginning to leverage social media platforms throughout the corporate environment,"  he  explained  earlier  this  year.

"With electronically stored information rapidly rising in volume, avoiding e-discovery missteps requires cooperation from two corporate functions that typically have little in common and often don't speak the same language: legal and IT."  

Research published by the Deloitte Forensic Center in June revealed that 62 per cent of companies are concerned about how e-discovery challenges could be created by the use of online social media forums. In addition, a quarter suggested that their companies are not yet prepared to deal with requests related to the business use of social media.

While Mr Seymour suggested the only way forward is collaboration between legal and IT, the findings revealed this has not yet been recognised by many firms. It found that just 23 per cent of those involved in compliance feel their IT department understands requirements for e-discovery well. Coincidentally, the same amount of IT staff felt their legal department understands the limits of what computing staff can do to support the issue.

Toby Bishop, director of the Deloitte Forensic Center, suggested a lack of communication can have "serious repercussions". He explained: "This communication challenge should be overcome if the risk of e-discovery missteps is to be mitigated.

"Cross-functional e-discovery training can help IT personnel understand what the legal team needs from them, and to help the legal team understand what IT can and cannot accomplish with the skills and resources they have."  

With social media continuing to become a major global proposition, it is hard to argue against the concept becoming a growing issue for both consumers and businesses to consider. However, as the report from Deloitte shows, the concept needs to be considered carefully, particularly when it comes to legal issues such as e-discovery.

All of the above highlights how the issue of information retention is regularly evolving, meaning firms may need to keep on their toes and consider every avenue when reviewing their structure for such issues.