Twitter tweets, blog posts, LinkedIn profiles, text messages, YouTube videos, email, and any other online content may be considered electronic business records and subject to subpoena or otherwise used as evidence to support a lawsuit. All organizations are required by law to manage and maintain their electronic business records in a way that is compliant with the rules governing the discovery of evidence. Discovery is the phase of litigation when parties to a lawsuit must produce all documents relevant to the case. The process of requesting and collecting electronically stored information is called “e-discovery”. E-discovery has become a significant part of most litigation today and adds an additional unexpected cost to the already expensive litigation costs. Failure to produce relevant electronically stored information can result in enormous financial penalties and sanctions imposed by the court.
To be prepared for e-discovery and to mitigate risk, a business should adopt appropriate document retention policies and social media activity so it is ready when e-discovery requests are made.
- Do you have a social media policy in place and has it been reviewed in the past twelve months?
- What is your record retention policy regarding electronic business records?
- Are all users familiar with your policy and program?
- Do users understand the difference between business records that must be retained and archived for legal and regulatory reasons and personal email that may be deleted in the ordinary course of business?
- Do you have technology to archive and support your retention policy?
- Do your employees understand the rule regarding personal use of corporate technology such as laptops, tablets, smart phones, social media accounts?
- Can you effectively search your records to produce relevant business records?
- Can you comply with the Federal Rules of Civil Procedure and applicable state laws and e-discovery guidelines?
- In Minnesota the rules of civil procedure and e-discovery guidelines can be found here.
- Determine an appropriate retention, preservation, and deletion schedules understanding that email and other forms of electronic information never disappear completely.
- Form a records management team and implement a record retention policy
- Create a litigation hold policy and procedures designed to mitigate risk and that can be implemented immediately upon the initiation of a lawsuit
- Train employees and all those who may have access to our use your business records on your program and process for electronic record management so that they all know and understand what the business considers a “business record” and understand the role they play(if any) in the preservation of electronic business records and the deletion of non-records.
CREDIT: The content of this post has been copied or adopted from the Minnesota Department of Employment and Economic Development’s “A Legal Guide to the Use of Social Media in the Workplace” Guidebook