You could say that 2012 was the year that the legal industry embraced social media — but that doesn't mean that social media embraced the legal system.
When 2012 started, the issue of social media and the law was prominently covered. Even the American Bar Association featured the subject as its theme for Law Practice magazine’s January/February issue. In that issue, the cover story was a social media networking guide for lawyers. The issue also investigated how law firms should handle social media, when to engage in the social media conversation and how to create a social media policy.
In 2012 alone, the legal industry began to tackle issues related to employer requests for social media passwords, FDA guidance about the promotion of medical products on social media, and whether or not a Facebook "like" is protected under the first amendment. Additionally, there were issues related to the discoverability of relevant data on social media.
Law and Social in the Past
Prior to 2012, the legal industry — among others — chose to ignore social media, wishing and hoping that it would all go away. By 2011, some began to confront its presence, thanks to vendors who helped make it easier to incorporate social media into their EDRM platforms.
But 2012 was the year when the legal industry sought to better understand the fine line between social media and legality, so it’s not unreasonable that 2013 might be the year when social media and the law become more entwined so that users can better understand their rights and responsibilities across social media platforms and so that the enterprise can begin to think strategically when it comes to defining and evolving their social media governance policies.
We wanted to learn more about what 2013 had in store for social media and the law, so we turned to Kroll Ontrack’s, Michele Lange. Who better than the director of Thought Leadership and Industry Relations at Kroll Ontrack to comment on what we've seen in the last year regarding social media and the law and any trends that will be forthcoming in 2013? Here’s what she wrote:
In 2012, social media was cemented as staples in everyday communication with Facebook and Twitter user-ship surpassing 500 million and 1 billion, respectively. These sites were not relegated to personal communications, either — approximately 80 percent of companies used social media to market products and build consumer relationships.
While “friending” and “tweeting” provide numerous benefits, the ediscovery challenges these sites pose for legal professionals are now well known and frequently discussed. Namely, issues relating to discoverability, preservation, collection and authentication of such data permeated discussion amongst courts, litigators and commentators in 2012. Although governing standards have yet to emerge on these issues, expect best practices regarding these media to keep evolving."
Some courts favor broad discovery, such as E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc. (2012 WL 5430974 (D. Colo. Nov. 7, 2012)), which reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information. However, other courts rejected broad discovery of such data, finding that the Federal Rules do not grant a “generalized right to rummage at will through information [a person] has limited from public view.”
Preservation and Collection
Due to the intricacies of this data, which is frequently changing and retained by the platform provider on remote servers, preservation is no easy task. Additionally, social media collection options are still rudimentary at best, such as taking screenshots and proxy monitoring. Regardless of the method chosen, counsel must start early, contain consent and logins before collecting, and consider an expert to help.