Deloitte: Widespread concern over eDiscovery and social media

Contributed by Roumiana Deltcheva (Mittwoch, 16 Juni 2010) | Category : eDiscovery

A survey conducted by the Deloitte Forensic Center was released earlier this week and reported that more than two-thirds of those responding are concerned about the potential impact of social media on eDiscovery. The survey polled 337 people based in the United States that specialize in information technology, law, risk management and regulatory compliance - 43 percent of the IT professionals were at the executive level or above.

The respondents that claimed to be worried about the potential for disaster related to eDiscovery and social media cited the growing utility of eDiscovery solutions. Aside from gathering evidence, the increased regulations placed on various companies and law firms by regulatory compliance bodies is a concern as well.

"The demands of eDiscovery are clearly growing. Facebook and Twitter have not only become more prevalent in employees' personal lives, but have also become more accepted in the workplace, as companies are beginning to leverage social media platforms throughout the corporate environment," said Jeff Seymour, leader of the Northeast analytic and forensic technology practice for Deloitte Financial Advisory Services.

Finding a reliable eDiscovery solution is especially important as very little pertinent information is stored offline. Any mishaps in email archiving can lead to massive fines from compliance organizations. The survey strongly recommends companies boost communication and cooperation between legal and IT departments until eDiscovery solutions can navigate social media.

"With electronically stored information rapidly rising in volume, avoiding eDiscovery missteps requires cooperation from two corporate functions that typically have little in common and often don't speak the same language - legal and IT," Seymour continued.

Developing a policy that requires representatives from each department to discuss any and all use of social media so that those responsible for the functionality of archiving programs can ensure that data is being stored. Even though a ruling from a California judge deemed private social media correspondence as protected by the Stored Communications Act, the lack of a clear federal policy will likely lead to differing opinions from other court judges.

"The predominant lack of effective communication between legal and IT functions can have serious repercussions including sanctions, lost cases and severe fines," Toby Bishop, director of the Deloitte Forensic Center, said.

Many organizations have praised the use of workshops discussing the use of eDiscovery and the reason for newly implemented policies related to social media as an easy way to make it clear to employees that anything they send on a company computer can be used against the organization. Several companies have mentioned that doing the same with email archiving policies has helped workers understand their responsibility and decreased the amount of unnecessary messages sent.

"This communication challenge should be overcome if the risk of eDiscovery missteps is to be mitigated. Cross-functional eDiscovery training can help IT personnel understand what the legal team needs from them, and to help the legal team understand what IT can and cannot accomplish with the skills and resources they have," Bishop said.

eDiscovery experts Kathy Owen and Tim Gordon recently told Compliance Week that until a federal court ruling is made on social media, it will be a hassle for the legal world. Both favor an alteration to the Federal Rules of Civil Procedure to clarify the criteria that social media fit into, so that attorneys and judges can approach it with the same mindset. Also, this would help companies with regulatory compliance responsibilities develop sound policies for social media retention similar to email archiving methods.