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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 jelkin@porterhedges.com.

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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