Social Media and E-Discovery - What it Means for your Business's Document Retention Policy

Business Owners: Document Management and Retention Policy

It is clear from the prior posts that lawyers are aware that there is a lot of evidence to be discovered from social media.  However, what does this mean the operations of a business?  In terms of the bottom line discovery will only complicate your day-to-day operations as you search for some blog post you put up two years ago.  Your social media should be added to the document management and retention policy, but it should be done efficiently as to minimize any future compliance or litigation action.

Consider this, that in 2010 FINRA issued guidance for blogs and social networking sites, and set forth the record keeping responsibilities in the financial broker-dealer business.

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 ad 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110.

Why Have a Document Management and Retention Policy?

In general, you should always have a way of finding your files.  It will not only help comply with discovery requests, but for yourself it will help you find things for things such as regulator and tax requirements.  Not only will lawyers be grateful you can find your own files, but accountants and various consultants find it helpful as well.

Therefore, your business records policy should be aimed at three goals:

  1. Preserving until end of usefulness (both for legal and business reasons);
  2. A systematic approach to destruction, which explains why documents no longer exist;
  3. Limiting the number of areas that a discovery request will force you to search.

So basically, in your policy you have defined time, space, and existence.  It’s like having your own document universe where you get to control the rules.  In terms of legal considerations, and an attorney can help you with this part of the policy, but consider the following:

  1. litigation hold procedure if you anticipate any litigation or government investigation;
  2. how to handle the portability and backing up of data; and
  3. how to control non-company devices that access and use company data.

Incorporating Social Media

Now factoring in social media, you can kind of thing of it as it’s own galaxy in your document retention universe.  Due to its nature, and people’s perception of it you will have to a) think about how you want to archive it and b) train people to get used to organizing it.

As mentioned in the prior post you can download your Facebook data and get all your tweets in excel format.  For blog posts it depends on what service you are using, but some give you the option of backing up your blog.  You should also consider if you write in MS Word to draft the posts before hand of saving it in that format as well.

Finally, for your own sake and your lawyer’s sake be sure to digitally timestamp and signature the files.  This goes to authenticity of the evidence for a trial.  In addition, be sure to try and keep social media preserved in their native format.  Thus things like video or Flash files should be kept safe an the ability to replay is crucial because some regulatory situations will NOT accept screenshots.  Basically, you need to prove the exact contents and the manner it interacts with a user on any given date.

Training and Responding

Watch how people connected you talk about your products and services. Make sure employees and paid bloggers disclose anything you gave them in connection with touting your business's products and services.

Once you have set-up a document management and retention policy, concerning social media.  You have to train your employees to follow it.  It will give weight and credibility to why certain documents exist and others do not.  In terms of social media, when people use it they kind of think that what they post will not remain there and is only a flight of fancy.  So you are going to have to train against that mentality, as well as that social media posts are for company purposes and are a part of the company.  Followed by the fact that you will have to archive it like a library and you can see that training on social media retention is a little bit more complex.

If litigation does come knocking on your door, an attorney can help you strategize with a proper response.  Now that you have an efficient and searchable document management system it will be less of a nightmare.

Final Points: Centralize and Use Software

With social media and document retention centrality of the data/documents becomes a key issue.  Archiving and housing the data in all different manners and places is a real headache to sort later.  Put in the effort to centralize and organize in the beginning.  Lastly, while your business is small consider scalability of your document management system as it grows.   You may want to consider the use of specialized software.

As always if you like this post or any of my other series please Subscribe to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com or leave a message at 808-944-8400.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.