Beyond the Meet and Confer Basics: Will you be collecting social media data?

May 11, 2010 - By Virginia Henschel

Beyond the Meet and Confer Basics: Will you be collecting social media data? 

The current issue of Metropolitan Corporate Counsel features an article we authored on basic considerations for the meet and confer process; you can link to the article here.  We wanted to take the opportunity today to expand the conversation to social media considerations.

Many lawyers still conduct the meet and confer conversation without the participation of in-house IT/IS or outside service provider experts. They may be using a ‘checklist’ approach to the conversation that is likely outdated and incomplete, as the scope of potentially relevant data evolves with our communication technologies.

What if your case involves an assertion of liability arising from the CEO of a major company blogging anonymously about a competitor and the consequential impact on the competitor’s share value?  Perhaps your client asks you to evaluate a corporation’s public representations regarding the health of its iconic CEO against the share value over a defined period of time?  Or, you have reason to believe there is a “smoking gun” text message, Facebook post or tweet that would support your position in litigation? Maybe it is ‘simply’ GPS data in a traffic accident. Where will you find this data? 

If the social media data has been captured, typically it won’t be sitting in a structured database.  Additionally, in business organizations, social media content rarely falls within the confines of records management policies. Many problematic social media ‘posts’ occur over personal mobile devices during work hours. While companies routinely capture unstructured data (audio, video and unstructured text such as the body of an email or word processor document) subject to records management policies, or subject to litigation hold notices, there is rarely a defined process for capturing social media data.

Social media data might be swept up in the organization’s archiving processes or in periodic snapshots. It might be found on a forensic image of a hard drive, captured on a company server, on archived or active web pages…or captured by a “friend” and printed out.

If social media data is relevant to your case, be prepared to review the potential scope of the data, options for accessing it, and the probable cost, throughout the meet and confer process.  Don’t wait to have this conversation!  Ask for the organization’s social media policy (if it exists) and ask how compliance with the policy is audited.  If the communication(s) occurred over personal mobile devices or home computers, request for access is likely to require court intervention and a very persuasive argument.

Don’t come late to court to request social media data – judges expect you to be on top of your case and the spectrum of relevant data at the meet and confer.

Virginia Henschel is Vice President of E-Discovery Affairs for Applied Discovery. In this role, she advises clients on best practices for litigation readiness for e-discovery, including data mapping, database development, litigation hold notices, meet and confer preparation and managed reviews. Ms. Henschel previously served as E-Discovery Counsel for Sunoco, Inc., specializing in multi-district, complex litigation. Prior to joining Sunoco, Inc., she served as Assistant General Counsel for a global Fortune 500 corporation where she managed global risk and litigation.

« Go Back