Social Media: New Evils, Old Challenges

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1 Social Media: New Evils, Old Challenges Published September 2010, Law Business Review Jack Halprin, Esq., Vice President ediscovery and Compliance, Autonomy, Inc.

2 Knowledge management The lack of published decisions make it imperative for counsel to ensure that they keep themselves and their corporation from being in the spotlight as the first published decision on the management of social media or rich media sites are here to stay, and with unstructured data increasing at a rate of more than 60% annually, they must be managed in the same proactive manner as other forms of information New Evils, Old Challenges Governing the use and purpose of social media is high on the list of corporate counsel worldwide. Jack Halprin discusses how lawyers can develop the right policies to ensure that organisations meet their disclosure, compliance and governance needs The numbers are staggering 20 billion tweets worldwide, in the UK 85% of the population is online and spending more than six hours each month on social media sites, 64% of the population have a social media profile, 60% read blogs and just under 50% have visited at least one social media site in the past month. With users in the hundreds of millions worldwide, including most of the top global organisations, it is clear that social media sites are a data source that needs to be understood and managed. sites including Facebook, Twitter and LinkedIn and rich media, such as audio, video, and unified communications content, are a human-friendly means of communication, but they are also new form of electronic data that corporate counsel must 50 LawBusinessReview.co.uk September 2010

3 Knowledge management Banning social media and rich media creates a greater risk that the organisation will be non-compliant and unable to prove a defensible, systemised process for disclosure when employees use these media sources Getty Images/John Lund/Blend Images manage. These sources of information are here to stay, and with unstructured data increasing at a rate of more than 60% annually, they must be managed in the same proactive manner as other forms of information. The challenge The use of social media continues to grow rapidly. The civil procedure rules in the UK and US, corresponding case law, and regulatory requirements highlight the need to proactively manage electronically stored information (ESI) as well as define social media and rich media as ESI. To protect their organisations, counsel must not only understand why and how to manage social media and rich media, but must also work with IT, information security, records and compliance colleagues and their law firm counterparts to ensure that these additional sources of information are managed properly. The task of managing ESI for edisclosure can seem daunting even without social media and rich media. ESI is transient, easily modified and altered, and harder to manage than paper documents. Furthermore, social media, websites and rich media are not new additions to the list of discoverable ESI the definition has always included audio and video. In the past few years, the change has been in the rapid adoption and increased use of these forms of communication. In fact, research analyst Gartner predicts that social networking is set to overtake by 2014 (Anuradha Shukla, Gartner Predicts Social September 2010 LawBusinessReview.co.uk 51

4 Knowledge management Networking to Overtake , ComputerWorld.com, 8 July 2010.) Corporations are not only using social media to help drive business but also rapidly deploying unified communications platforms, web-conferencing, and video conferencing, creating additional sources and formats to managed. Too big to be ignored Corporate counsel can no longer ignore social media. If the massive internet use within the UK is not enough to spur counsel into action, consider the following statistics from social and rich media websites: More than 500 million users, translated into 70 languages in more than 180 countries. Additionally, there are 150 million active users accessing the site through mobile devices. More than 190 million visitors each month, generating more than 65 million tweets every day. More than 122 million monthly active users in 29 regions and 15 languages. More than 70 million members in more than 200 countries, with executives from all Fortune 500 companies as LinkedIn members. Additionally, LinkedIn is adding deep Twitter integration as well as a plug-in for Microsoft Outlook. More than two billion videos viewed every day. In addition to the large number of individual users, more than three-quarters of the Fortune Global 100 list are using social media sites and more than one-third of all US companies say social media has helped them gain business. With such high usage numbers, corporate counsel can reasonably expect social media and rich media to be both important sources of ESI in the edisclosure process and data that must be managed. (Figures from the Burson-Marsteller Fortune Global 100 Social Media Study, Burson-Marsteller, The Burson-Marsteller Blog.) Rules and regulations In the UK, social media sites and rich media formats are documents under the Civil Procedure Rules (CPR). CPR, Pt 31.4, defines a document as anything in which information of any description is recorded, and the Practice Direction to Part 31 states that documents include and other electronic communications as well as documents that are readily accessible from computer systems and other electronic devices and media. (Practice Direction 31, s 2A.1.) In the US, the Federal Rules of Civil Procedure (FRCP) include social media and rich media in the definition of a document and ESI, which includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. (FRCP, Rule 34(a)(1)(A).) Beyond the CPR and FRCP, regulators in the US and UK require organisations to manage social media and rich media. The UK Financial Services Authority (FSA) requires financial services companies to maintain audio recordings. FSA COBS 11.8 requires financial services companies to take reasonable steps to record and retain client-related telephone conversations and store the recordings for a minimum of six months in a manner that is easily accessible, auditable and preserves the original recording. More recently, in the US, the Financial Industry Regulation Authority issued Regulatory Notice requiring financial services firms to monitor and maintain records on social media site usage and interactions. In discussing the increased use of social media, FINRA requires that: Every firm that intends to communicate, or permit its associated persons to communicate, through social media sites must first ensure that it can retain records of those communications as required by Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 and National Association of Securities Dealers, Rule Security and Exchange Commission (SEC) and FINRA Rules require that for record retention purposes, the content of the communication is determinative and a broker-dealer must retain those electronic communications that relate to its business as such. With regulatory requirements, financial services organisations usually lead the pack, and given the recent increase in regulatory requirements as a result of the global financial crisis, management of these data sources for all corporations cannot be far off. On a related note, while privacy issues should concern counsel, social media, in particular, is more public. As a Canadian court recently stated, one cannot have a serious expectation of privacy [when] 366 people have been granted access to the private site. (Leduc v Roman, para 23 (2009 CanLI 6838 (ON S.C.)). Court guidance It is clear that the CPR, FRCP, FSA and FINRA view social media and rich media as ESI that must be managed defensibly. However, in looking to the courts for guidance on what is defensible, corporate counsel may find little comfort. In the UK, despite multiple cases which impact the way lawyers must manage preservation and disclosure, including Earles v Barclays [2009] All ER (D) 179 (Oct); [2009] EWHC 2500 [QB], Goodale v Ministry of Justice [2010] EWHC B40 [QB], Digicel v Cable & Wireless [2008] EWHC 2522 [Ch], and Vector Investments v Williams [2009] EWHC 3601 [TCC], there have been, to date, no published decisions covering social media sites and rich media. It is this lack of published decisions, however, that make it imperative for counsel to ensure that they keep themselves and their corporation from being in the spotlight as the first published decision on the management of social media or rich media. 52 LawBusinessReview.co.uk September 2010

5 Counsel must be able to effectively search for and identify relevant information. With users in the hundreds of millions, web pages and tweets in the billions, and content in more than 100 languages, each with their own slang, this is a gargantuan task Knowledge management In the US, despite ample case law on audio and websites, social media sites are only now beginning to see court scrutiny. In Crispin v Christian Audigier, Inc., 2010 WL (C.D. Cal. May 26, 2010), the defendant subpoenaed several social media sites seeking information relevant to plaintiff s claims. The court found the Stored Communications Act (SCA) applicable to the subpoenas to the extent they sought private messages, but also noted the distinction between private messages and more public posts for which the SCA was inapplicable. While the case is not dispositive as to how this data must be managed, it highlighted the importance of social media as a data source and noted that this data can be obtained directly from parties to the action even if the SCA prevents a third-party subpoena. (For other cases on websites and audio, respectively, see Arteria Property Pty Ltd v Universal Funding VTO Inc., 2008 WL (D.N.J. Oct. 1, 2008) and Nursing Home Pension Fund v. Oracle Corp, 2008 WL (N.D. Cal. Sept. 2, 2008).) Although the UK and US have seen a limited number of decisions, the Canadian courts are not shying away from social media. The Superior Court of Justice in Ontario, Canada in Leduc v Roman (2009 CanLI 6838 [ON SC]) held that social media sites would need to be disclosed if they contained relevant information. The court cited a multitude of cases which showed, [t]hat a person s Facebook profile may contain documents relevant to the issues in an action is beyond controversy. (Leduc v Roman, para 23). Clearly, the trend is to hold that social media sites and rich media are discoverable through the disclosure process, assuming they are relevant. The lack of published cases should not prevent counsel from meeting the preservation obligation. Managing the deluge The challenge for the corporate lawyer is how to manage this information on behalf of the corporation. To use an American football analogy, corporate counsel can block the use of these data sources, punt and ignore them as an ESI source, or tackle them proactively. While blocking and punting may seem to be the easiest and most expeditious courses of action, these two approaches are not defensible or best-practices. Blocking the use of social media and rich media is not feasible. The use of these sources is on the rise and is an essential part of business operations in most organisations. Even if the organisation were to successfully block access and enforce internal policies prohibiting use, Facebook s 150 million active users accessing the site on mobile devices highlights the futility of this approach. Further, banning social media and rich media creates a greater risk that the organisation will be noncompliant and unable to prove a defensible, systemised process for disclosure when employees use these media sources. Punting and ignoring social media and rich media seems attractive, but the risks from sanctions, penalties and damaging media coverage are too great. Additionally, courts have not looked kindly on a lack of process. As the court in Earles v Barclays stated, one expects a major high street bank in this day and age of electronic records and communication to have an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its ESI in the disclosure process in litigation and regulation. This could apply to any industry. In the US, the courts also expect litigants to have processes and procedures in place (see Pension Committee (2010 US Dist. September 2010 LawBusinessReview.co.uk 53

6 Knowledge management LEXIS 4546 (SDNY Jan. 15, 2010)) and Rimkus v Cammarata (2010 US Dist. LEXIS 14573(SD Tex, 19 February 2010)). Ignorance of the law has never been a valid defence, and ignoring the law and relevant and discoverable data is not an excuse. The solution is for counsel to be proactive and tackle the social media and rich media challenge alongside other forms of ESI. Although social media and rich media may require additional effort to manage, courts and regulators on both sides of the Atlantic have made it clear that they expect ESI to be managed properly. It is essential that counsel be prepared with processes and solutions. Unique challenges While social media and rich media are just another form of ESI, they present some unique challenges for lawyers. Means of communication have become more conversational and less formal as they have evolved. The move from written communication to to instant messaging reduced formality and rigidity, adding an increased use of slang and abbreviations to communications. As communication continues to evolve, the use of slang, abbreviations and code words increase even further. To manage these data sources, counsel must be able to effectively search for and identify relevant information. With users in the hundreds of millions, web pages and tweets in the billions, and content in more than 100 languages, each with their own slang, this is a gargantuan task. Theoretically, counsel could manually search social media and rich media for relevance, but the size of the data sets makes this reactive approach a virtually insurmountable task. Automation is required, and the solution must also go beyond blind reliance on keywords and legacy search to understand the meaning, concepts and context in order to proactively and defensibly manage these data sources. While counsel can attempt to use legacy search methods, including keyword and Boolean search, they will be of limited use for social media and rich media. Research has shown that these legacy methods may only find 22% of relevant data. Recent cases have held that keyword searches are no longer the favored methodology. (See Information Inflation: Can the Legal System Cope? 22 24, Richmond Journal of Law and Technology [2006] and Asarco, Inc v United States Environmental Protection Agency, 2009 WL [DDC, 28 April 2009]) In order to truly manage social media and rich media, advanced searches that can understand the meaning, concept and context of social media and rich media is required. Without understanding meaning, how would one know what sol or roflmao means? Furthermore, what does dog mean? Is it the animal, a bad stock pick, a derogatory comment, or a salutation? As we look at the global nature of today s corporations, it is clear that the technology must be language independent, as a dictionary and thesaurus alone will not help understand meaning, context or concepts across languages. The most advanced technology will allow counsel to search for and identify not only relevant terms and topics, but also relevant concepts through an understanding of meaning and context. Choosing a solution If it is not there already, social media and rich media should be on the radar of corporate counsel worldwide. Whether a UK When looking for a solution, corporate counsel need to keep several things in mind Human-friendly information is conversational in nature, often using slang, code, and abbreviations such that any technology needs to be able to understand the meaning of the information. The volume of data presented by social media and rich media is large and growing rapidly, so that any technology chosen must not only be able to reach out to social media sites but also be able to grow in scale over time. and rich media are global data sources, so the technology chosen must be able to work across borders, be language independent, provide the necessary security, and be able to respect the various cross-border privacy regulations that one may encounter. Counsel should look for a defined return on investment which can be achieved by looking toward technology that can be used not only for disclosure but also broader regulatory compliance and information governance purposes. While many vendors can read a web page, a few can listen to or watch rich media, and fewer still are able to understand that information effectively. or global organisation, these data sources must be managed. While there is no one-size-fits-all approach to the solution, technology will provide a scalable approach. Vendors today are able to provide the advanced technology that can manage social media and rich media in a defensible manner. Look before you leap As with any technology and process decision, counsel should look before they leap. governance is a hot topic now and on the minds of corporate counsel worldwide. The task of managing this data is not insurmountable, and developing the right policies and deploying the right technology can ensure that your organisation meets its disclosure, compliance and governance needs. While it is easy to view social media and rich media as a new evil, these data sources and formats provide huge benefits to the organisation while presenting the same types of challenges as other formats for data management, search or disclosure. A proactive approach will protect you and the organisation from any damage that could result from inaction, as failing to act now can have disastrous results down the road and make you the poster child for disclosure management tomorrow. Jack Halprin is vice president of ediscovery and compliance with Autonomy Inc, jack.halprin@autonomy.com Further reading Gartner Predicts Social Networking to Overtake ( Burson-Marsteller Fortune Global 100 Social Media Study ( 54 LawBusinessReview.co.uk September 2010

7 Jack Halprin, Esq. VP, ediscovery & Compliance Autonomy, Inc. As Vice President, ediscovery and Compliance with Autonomy, Jack Halprin serves as internal and external legal subject matter expert for best practices and defensible processes around litigation, electronic discovery, legal hold, and compliance issues. He speaks frequently on enterprise legal risk management, compliance, and ediscovery at industry events and seminars, and has authored numerous articles on ediscovery, legal hold, social media, and knowledge management. He is actively involved in The Sedona Conference, ACC, and Electronic Discovery Reference Model (EDRM). With a BA in Chemistry from Yale University, a JD from the University of California-Los Angeles, and certifications from the California, Connecticut, Virginia and Patent Bars, Mr. Halprin has varied expertise that lends itself well to both the legal and technical aspects of electronic discovery collection and preservation. Prior to joining Autonomy, Mr. Halprin was with Guidance Software as Senior Product Marketing Manager/Product Manager for ediscovery, where he developed business partnerships, drove product development, conducted research, and created integrated marketing efforts for EnCase ediscovery. Prior to Guidance Software, Mr. Halprin served as Corporate Electronic Discovery Specialist with LexisNexis Applied Discovery, increasing company knowledge of ediscovery-related topics and delivering Continuing Legal Education sessions for corporate legal departments. Prior to working in the ediscovery field, Mr. Halprin worked for BAR/BRI Bar Review, where he created and launched a Patent Bar Review program and delivered lectures for both the patent bar exam and state bar exams, and was a litigation associate at Santa Monica s Haight, Brown & Bonesteel. About Autonomy Autonomy Corporation plc (LSE: AU. or AU.L), a global leader in infrastructure software for the enterprise, spearheads the Meaning Based Computing movement. IDC recently recognized Autonomy as having the largest market share and fastest growth in the worldwide search and discovery market. Autonomy s technology allows computers to harness the full richness of human information, forming a conceptual and contextual understanding of any piece of electronic data, including unstructured information, such as text, , web pages, voice, or video. Autonomy s software powers the full spectrum of mission-critical enterprise applications including pan-enterprise search, customer interaction solutions, information governance, end-to-end ediscovery, records management, archiving, business process management, web content management, web optimization, rich media management and video and audio analysis. Autonomy s customer base is comprised of more than 20,000 global companies, law firms and federal agencies including: AOL, BAE Systems, BBC, Bloomberg, Boeing, Citigroup, Coca Cola, Daimler AG, Deutsche Bank, DLA Piper, Ericsson, FedEx, Ford, GlaxoSmithKline, Lloyds Banking Group, NASA, Nestlé, the New York Stock Exchange, Reuters, Shell, Tesco, T-Mobile, the U.S. Department of Energy, the U.S. Department of Homeland Security and the U.S. Securities and Exchange Commission. More than 400 companies OEM Autonomy technology, including Symantec, Citrix, HP, Novell, Oracle, Sybase and TIBCO. The company has offices worldwide. Please visit to find out more.

8 Headquarters: Autonomy Inc. One Market, 19th Floor, Spear Tower San Francisco, CA 94105, USA Tel: Fax: Autonomy Systems Ltd. Cambridge Business Park Cowley Rd, Cambridge, CB4 0WZ, UK Tel: +44 (0) Fax: +44 (0) Other Offices: Autonomy has additional offices in Antwerp, Barcelona, Beijing, Bogota, Boston, Buenos Aires, Calgary, Cambridge, Chicago, Dallas, Darmstadt, Kuala Lumpur, London, Madrid, Mexico City, Milan, Munich, New York, Oslo, Paris, Pleasanton, Rome, San Diego, San Francisco, San Jose, Santiago, Shanghai, Singapore, Sao Paulo, Stockholm, Sydney, Tokyo, Utrecht and Washington, D.C. Copyright 2010 Autonomy Corp. All rights reserved. Other trademarks are registered trademarks and the properties of their respective owners. [ _TR]