NOTES SOCIAL MEDIA: ITS CHALLENGES AND OPPORTUNITIES. Cohasset Associates, Inc Managing Electronic Records Conference 27.1

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1 SOCIAL MEDIA: ITS CHALLENGES AND OPPORTUNITIES Jonathan M. Redgrave, Redgrave LLP Rakesh Madhava, Nextpoint May 21, 2014 SOCIAL MEDIA: UBIQUITOUS & OMNIPRESENT SOCIAL MEDIA: INTERNAL Managing Electronic Records Conference 27.1

2 SOCIAL MEDIA: INTERNAL PROS Ease of communication Business efficiencies Reduced volume CONS People say the darndest things Challenges in monitoring and curating ediscovery Challenges (more later) 4 POLICIES AND PRACTICES: INTERNAL Clear rules on what employees can and should post, keeping in mind First Amendment rights and NLRB rulings Self governed or moderated sites Remind that general codes of conduct and anti harassment policies apply Consequences for failure to comply Constantly revisit and reassess 5 SOCIAL MEDIA: EXTERNAL Managing Electronic Records Conference 27.2

3 SOCIAL MEDIA: EXTERNAL PROS Vast audience Increased visibility Increased customer interaction CONS Questions regarding Possession, Custody & Control Need to monitor non sponsored communication Potential Rouge IT ediscovery Challenges (more later) 7 POLICIES AND PRACTICES: EXTERNAL Make it simple and understandable Which platform(s) is appropriate for business use Who in the business will own the site (dedicated curators) Branding guidelines Content approval process Develop policies regarding factual inaccuracies, negative comments, offensive content but make sure they are in line with emerging law Determine whether a moderator will be required to detect, escalate, and/or respond to issues. In event of customer complaints, consider contacting that customer via another channel (e.g., in app 1:1 messaging) to address issue What third parties will be involved 8 POLICIES AND PRACTICES: EXTERNAL What are the risks and how will those risks be mitigated - Develop and publish community guidelines - Policies on responding to posts and responding to notice Address information management needs - Records management - Data privacy - Crisis management - Regulatory compliance - Legal obligations Managing Electronic Records Conference 27.3

4 EMPLOYERS AND EMPLOYEES State lawmakers began introducing legislation in 2012 to prevent employers from requesting or requiring passwords to personal social media accounts to get or keep a job. Legislation has been enacted in 15 states. Legislation regarding employee protections has been introduced or is pending in at least 28 states. TYPICAL SOCIAL MEDIA PROTECTION LEGISLATION Prohibits employers from requesting or requiring an employee or applicant to disclose social media account login information or allowing observation of a social media account. Some Exceptions: - Employer may review information that is publicly available - Employer may require access to information from devices an employer pays for - Employer may require access to investigate with reasonable cause the alleged transfer of company proprietary or confidential information, among others. May also apply to educational institutions and landlords. NATIONAL LABOR RELATIONS ACT The National Labor Relations Act protect the rights of employees to act together to address unfavorable working conditions, whether or not they are part of a union. Generally, employers social media policies violate the National Labor Relations Act ( NLRA ) if the policy prevents or discourages an employee from engaging in protected concerted activity Managing Electronic Records Conference 27.4

5 THE NLRB ON SOCIAL MEDIA NLRB General Counsel released 3 memos in 2011 and 2012 detailing the results of dozens of social media case investigations. Two takeaways: - Employer policies should not be so broad that they prohibit protected activity. - Employees comments on social media are generally not protected if they are complaint s or gripes not made in relation to group activities. STORED COMMUNICATIONS ACT The Stored Communications Act ( SCA ) protects an individual s right to privacy over electronic communications held in storage by third parties. The SCA prohibits RCS and ECS providers from knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service... In storage may mean unopened (exception 9th Cir.). The SCA has been interpreted broadly enough to encompass social media content, such as private YouTube videos, wall posts and private messaging on Facebook and MySpace, and restricted electronic bulletin boards. EMPLOYERS AND THE SCA Employers may not access such electronic communications even if log in and password information is discovered on or recovered from company owned devices or computers. Consent to access social media accounts cannot be obtained through coercion, fraud, or when the consenting party is under duress, including when there is fear of an adverse employment action Managing Electronic Records Conference 27.5

6 APPLY EXISTING INFORMATION GOVERNANCE FRAMEWORK Social media simply provides another method to present, share, and collaborate about data. Social media combines existing data sources: - Dynamic web pages - File sharing - Messaging - Versioning Apply lessons learned from these sources to properly govern social media. Don t reinvent the wheel. GENERAL RETENTION CONSIDERATIONS Does the application allow the business to set data retention rules that could be applied to users and/or content? Does the application support the auto classification or tagging of data objects based upon content? Does the application allow for the export of data objects and metadata to other systems for long retention periods? Can the application apply rules to delete content after expiration of retention parameters? Can the application record individual actions and content created, authored, or edited by a user Can the application record usage and the content that an individual had access to (e.g., could have viewed)? PILLARS OF EDISCOVERY RELEVANCE PROPORTIONALITY PRIVACY PRESERVATION 2014 Managing Electronic Records Conference 27.6

7 RELEVANCE Pursuant to FRCP 26(b), requesting party should make a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence Public postings may be used to show the relevance of private postings Courts have characterized social media as a file containing everything about me, however, that does not mean that the court will grant the requesting party access to rummage through the entire site Requests for social media content should be specifically tailored to target the relevant content, the same as any other request for production 19 PROPORTIONALITY As with all discovery, discovery of social media may be prohibited if it is burdensome or oppressive Social media discovery cannot be used as a fishing expedition Argue against reconstructing a page exactly how it looked at a specific point in time. Social Media pages are by design incredibly dynamic. It may be near impossible to reconstruct the look and feel of a page from 7 months ago (e.g., Facebook page) 20 PRIVACY No reasonable expectation of privacy even if the social site is made private by the user, it may by subject to discovery Some courts have provided for in camera review of sensitive information Friending is not an appropriate way to gain access to private information Corporations do not have a right of personal privacy for purposes of FOIA Managing Electronic Records Conference 27.7

8 PRIVACY Be aware that some general preservation tools may not preserve all metadata or utility of a social media site Record of the capture and export of data for chain of custody purposes 22 ULTIMATE TAKEAWAYS The amount of communication occurring through social media and web 2.0 sites will continue to increase The importance of this information to understand personal and corporate decisions and actions will continue to increase Courts and regulators will demand increased accountability for the management of social media data ediscovery and the duty to preserve information relevant to litigation will continue to drive many RIM and IG policies and practices Emerging domestic and expanding foreign protections regarding personal privacy may impact retention and preservation capabilities and responses ULTIMATE TAKEAWAYS In light of these trends, organizations should: - Be proactive to understand current and future social media endeavors (internal and external) - Be diligent to establish meaningful, practical and enforceable policies and practices to capture manage information on social media including content for records retention - Be knowledgeable regarding the technical aspects of how social media content is stored and the related preservation/collection tools - Be vigilant to recognize and adapt to new regulations, requirements and technologies 2014 Managing Electronic Records Conference 27.8