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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.

In the last post I talked about using social media as evidence and its legal relevancy to the litigation process.  Today’s post will be full of legalese, but my blawg is designed to help entrepreneurs of all types and that includes my fellow solopreneurs and small law firm attorneys.  As always, I will be discussing today’s subject in general and informative terms, and any procedural stuff will be with respect to Federal Rules.

Therefore, if you are a non-lawyer feel free to stick around, but today’s information is geared to others in the legal profession.  I thank you for stopping by and I will soon be getting back to some relevant posts to general small business situations.  However, before you go be aware that there are certain ethical rules that lawyers and those attached to them must follow.  For example, a lawyer cannot pose as a fictitious person and friend you on Facebook to get your information.

That being said just remember you should always be guarded about what you put out for the public using social media. Have a review process and if you have questions feel free to check my earlier posts on Social Media Policy.

Areas of the Law and Social Media as Evidence

Social media evidence has found a place in criminal and divorce (especially, with the flirtations that go back and forth between people).  It also has great use with corporate and employment law. Social media is good for providing alibis for criminal proceedings, discrediting a witness, and investigating people that are a part of the case.

In terms of torts, corporate blogs and statements put out by employees are great for products liability and personal injury situations.  While disputes of discrimination, emotional distress, and workers’ compensation fraud cases are backed up with Facebook pictures and Twitter posts.  Many bloggers use pictures, clips, and text freely from IP covered sources.

Some cases to consider:

  • EEOC v. Simple Storage Mgmt (2010) – refuting a claim of emotional distress from discriminatory conduct
  • TEKsystems, Inc. v. Hammernick (2010) – where plaintiff alleges that defendants violated a non-solicit agreement via their LinkedIn account

When to Gather Evidence

Consider poking around early.  If  you think your client may be sued or wants to sue someone else see what the opposing side has already put out there.  Basically, find out what you freely can about your opponent.  If they regularly use social media, consider it an opportunity to get information on them for free.  Once litigation commences, posts get deleted, privacy settings get set to maximum, and the ease of just screen-capping or printing a webpage is gone.

The flip side is that once discovery commences you will be allowed to use more formal methods to try and compel social media evidence.  Some ideas on the procedural formalities:

  • Interrogatories – should be used to identify the opponent’s screen or avatar names and the underlying social media account that is connected to each of those names;
  • Requests for production – should seek blog entries and postings, and if you can, use the date and timestamp connect to them;
  • Requests for admission – these should then be designed to backup and authenticate any such information gathered.

A Rule 26(f) conference should lay out the ground rules for social media production.

Defending Your Use of Social Media as Evidence

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.

Be prepared to defend all of that valuable evidence that you have discovered.  I discussed relevancy last week, but also hearsay and authentication enter into the equation.  Normally, it is sufficient that the witness who has personal knowledge that the evidence is in fact what it is purported to be.  Courts have accepted that website printouts need not be authenticated by the original poster or the site’s owner, but by an attorney that testified that they visited the site, recognized it as opposing party’s, and printed the screen. (Jarritos, Inc. v. Los Jarritos)(2007)

In general, for authentication issues, ask yourself the following two questions:

  1. Whether the exhibit is really a printout from the site you are claiming it to be from?
  2. And whether the printout can be satisfactorily shown to have arisen from the where you are claiming it came from?

For a more in-depth look at authentication of social media the ABA has provided an excellent article on the matter written by David I. Schoen and can be found here.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

Next time I will continue looking at other issues of using social media as evidence.  Namely, collecting and then preserving it.

*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.

For the past several weeks I have discussed the concerns of just putting things on your Facebook, Twitter, and other social media accounts.  I shared with you a few of the scenarios and stories that companies, employees, and people go through when social media goes awry at the workplace.
However, how does this stuff come up, legally speaking?  That’s where we have the Rules of Evidence.  For you readers that are laypeople I will try to keep this as simple as possible, but bear in mind you will be exposed to some legal terms.   For attorneys and law students, we will be sticking to Federal Rules, even though I am in Hawaii.

The Starting Point: Relevancy

Generally speaking, for evidence to be admissible it has to be relevant.  Yes, it is an extremely low threshold and in the realm of fast postings, easy tweets, and tons of drinking pictures that is kind of scary.  Is it relevant that you posted a picture of you jumping up and down partying at the bar?

Yeah, it might be, if you are in a battle over workers’ compensation with your employer and its insurance company over your work-related back injury and that picture was taken after your claim.

Thus, many things in the realm of social media become pieces that lawyers will use to try and craft a story on a matter in a case.  Another words, all those posts, tweets, pics, videos, and whatever else you are throwing up on your account could be fair game as evidence.

What about my Right to Privacy?

While the threshold for admitting evidence is relatively easy, it just needs to be relevant, don’t you lawyers have all these exceptions to the rule?  Can I not claim the stuff I put on my Facebook and Twitter accounts is private stuff?

Yes, we have exceptions.  But, the Right to Privacy in social media is NOT one of them.   This case simply illustrates the principle of why you cannot post or tweet something believing it will be protected.  In Romano v. Steelcase, Inc., 2010 WL 3703242, the New York Supreme Court ordered one party to turnover their MySpace and Facebook content to the opposing party.  For this matter content includes photographs, posts, and even recent deletions.  Why?  The court stated when a person chooses to disclose or share such information their ability to then say that is private is weakened.   If you choose to put it up, then how can you reasonably say you think it will be private?

What about the Terms of Service or Privacy Policy? Won’t that Protect Me?

Facebook, Twitter, and all the other social media sites all have varying Terms of Service and Privacy Policies, but they do remind you that while striving to maintain privacy and giving you the utmost control over your information there is no such thing as perfect privacy in social media.

Risks inherent in sharing information. Although we allow you to set privacy options that limit access to your information, please be aware that no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your information. We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available. We are not responsible for third party circumvention of any privacy settings or security measures on Facebook. You can reduce these risks by using common sense security practices such as choosing a strong password, using different passwords for different services, and using up to date antivirus software.

(emphasis added) Take from Section 8 of Facebook’s Privacy Policy page.

If You are Worried About It, Don’t Post It

As many professionals both in social media and legal circles have told me.  Once you post something it does not go away.  Therefore, in situations where you claimed one thing to one person, but your social media posts clearly shows something else you could find yourself in trouble unexpectedly.  For instance you called in sick to work, but you are showing pictures of yourself at the beach.

Bottom line:  If you don’t want something used against you in court, don’t post it.

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Next time, I will continue the discussion of social media information usage in trial and litigation work and some of the rules and cases that are shaping the laws interaction with these forms of communication.

Don’t forget if you enjoy this series or any of the other series on my blawg feel free to subscribe in the right-hand corner of this page to receive e-mail updates on posts.  If you are on Facebook be sure to “Like” “Ryan K. Hew” to get updates there as well.

*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.