Business Litigation Alert: "'Discovering'" Social Media"

For Companies In a Lawsuit, E-Discovery Moves Far Beyond Email

Social media like Facebook can pose significant problems in litigation, well beyond the fall-out from an inappropriate post by an employee.

Once a company is involved in litigation of any type, the social media activity of the company’s employees and officers can be subject to the pre-trial e-discovery process. Consequently, every company should have a policy in place to govern usage of social media and ensure compliance with the policy.

Below are some key things to consider:

  • Remember that any type of social media can be the subject of pre-trial discovery. Facebook and Twitter are merely the two most common, but many companies have internal social sites or other collaboration tools that generate potentially discoverable material.
  • Consider limiting at-work access to external social media sites.
  • Develop a clear social media use policy that identifies acceptable and unacceptable social media uses. Train employees on the policy. The most effective policies reflect corporate culture while balancing legal concerns.
  • Know that the law in this area is evolving. While there are several court decisions that provide guidance in this area, there is also disagreement.

In the e-discovery process, “I didn’t know,” simply doesn’t work. And, if there is a “smoking gun” it is usually to be found in an electronic form.

Make sure your policy is firmly in place regarding the use of social media before you discover a legal disaster instead. 


Jeff Elkin is a partner in the litigation section of Porter Hedges LLP.
He can be reached at 713.226.6617 or

This information is made available for educational purposes only and does not offer specific legal advice or create an attorney-client relationship with the Firm. Do not use this information as a substitute for specific legal advice. Attorney advertising

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