Issue link: https://epubs.iltanet.org/i/25416
possibility. In addition, social media data, like e-mail before it, is swiftly becoming another discoverable data source during litigation. In a recent case, McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 Pa. Dist. & Cnty. LEXIS 270 (C.P. Jefferson, Sept. 9, 2010), the defendant sought information stored not on the plaintiff’s computer or in e-mail, but specifically in social media accounts. In the motion to compel, the court ruled: Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit … and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted. While this case involved the social media data of an individual, the principle certainly applies to enterprise social media data as well. Without proper policies to help control such data, companies face risks regarding their social media content. In perhaps the highest profile case of subpoenaed Twitter information, the U.S. Department of Justice recently subpoenaed Twitter account information for accounts associated with the group WikiLeaks. On January 10, 2011, The Wall Street Journal reported: The court order — initially secret — was unsealed at the request of Twitter on Jan. 5. In it, the Justice Department seeks data related to the four Twitter accounts, including billing information, session logs and IP addresses. Issued by U.S. Judge Theresa C. Buchanan, 26 Litigation and Practice Support ILTA White Paper the order says the Justice Department provided “specific and articulable facts” to show the records were “relevant and material to an ongoing criminal investigation.” ONWARD THROUGH THE FOG The questions employers and their legal teams face in this new and unclear world are how to handle employee indiscretions online, and how to deal with the possibility of litigation and discoverability. The answer is preparation through clear policy guidelines, controls for creating and monitoring social media content, and technical procedures for obtaining and producing social media content. In the past, many businesses have steered clear of social media, mandating that their employees do the same, at least in regard to the business. With so much for companies to gain through the use of social media, avoidance is no longer the best solution. Instead, many companies are choosing to deal with social media in e-discovery with prevention of uncontrolled social media content and preparation for litigation. In addition to the risks of businesses suffering a public relations nightmare and possible litigation from employees or those outside the company, the risks companies face by being unprepared for possible discovery of social media could amount to hundreds of hours of playing catch-up, with not a minute to spare. The basic challenges are in the structure of how social media works on the Web and where the information is stored — off of company servers, operated by a third party. Businesses can use these free social media services, but ultimately the information is handled by (an often public) social