Not too long ago I was having a conversation with someone about the importance of social media in marketing strategies. Many companies have links to their Facebook and Twitter sites in their contact information. A simple search on Amazon.com for social media marketing returns hundreds of books on the subject. The social media sites themselves are also embracing marketing - Facebook has an entire Facebook page dedicated to Marketing Solutions. More companies are embracing social media each day – it is not just a fad.

According to Wikipedia, social media “uses Internet and web-based technologies to transform broadcast media monologues (one too many) into social media dialogues (many too many). It supports the democratization of knowledge and information, transforming people from content consumers into content producers”. The last part of this Wikipedia entry, “…transforming people from content consumers into content producers,” identifies why social media can be a potential e-discovery source – social media sites store information created by people (employees), and that information could be relevant to a particular litigation. For example, a business uses Twitter as a marketing medium and employees regularly “tweet” on new product lines. This Twitter marketing material could be relevant to a false advertising claim against the business.

As I learn more about social media and its integration with business activities, I’m reminded of the early days of email before the Internet was a household word. Just as email had e-discovery challenges when it was first being used as a tool to conduct business, social media presents several e-discovery challenges today. Below are a few of these challenges:

• The process for preservation of social media content is not yet mature. Many social media sites store the content on their own servers or in a cloud-like architecture, thus causing data access and ownership uncertainty.
• Methods do exist for real-time social media content collection, such as web site capture and packet sniffing. However, collection of historical content can be more challenging.
• Reviewing social media content can also be difficult, as the content may have relationships that explain the context. For example, posted content to a discussion group can be reviewed individually, but order and hierarchy of those posts provide the context of the conversation.
• Many companies have not yet implemented social media monitoring technologies. Those companies that have embraced monitoring technologies are faced with additional challenges such as determining whether an employee is representing himself or whether the employee is representing the company when accessing and providing content to a social networking site from a corporate asset.
• Retention policies can be challenging to implement on social media content. Some social media sites, such as Facebook, retain the user content information indefinitely even when one closes the user account.
• Social media content can be stored in a structured data repository. Last month I blogged about the challenges associated with structured data discovery - those challenges will hold true for structured data repositories housing social media content as well.

As more businesses realize the value of social media, the discovery of social media content will become more commonplace. New tools and technologies will be developed to identify, search, and produce potentially responsive content from social media sites, and new case law will be cited as precedents. I look forward to exploring this e-discovery frontier with my fellow colleagues.

About Juilan Ackert

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