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By Adam Cohen
One of the hottest topics in electronic discovery is social media. This new source of potential evidence has already been the subject of several cases and is pointing out the necessity for corporate defendants to both investigate plaintiffs’ postings as well as control risk by establishing policies that control employee behavior on social media.
In some ways, social media is a godsend to defendants. Most of the cases where social media has featured prominently involve plaintiffs’ claims being blown out of the water by self-contradictory statements or pictures posted on Facebook or other social media outlets. These cases demonstrate that many lawyers are still not savvy enough to look into their clients’ social media activity before making claims belied by that activity, to say nothing of considering preservation requirements including social media.
However, there are many risks to employers who do not attempt to establish compliance guidelines regulating employee social media activity. While other policies like computer use policies or general business conduct policies may be broad enough to cover social media in theory, specific guidance is necessary given the unprecedented risks in this area. The ability to spread communications that present legal (and business) damages exposure to a global audience, instantaneously, means that the spread of information the Internet had already made difficult to control has been turbocharged.
Social media policies should remind employees of their obligations and admonish them to be careful not to give the appearance that they represent the company in their postings. With senior executives, such association is likely to be assumed by the general public. There are many other provisions critical to such a policy…to be discussed in my next blog posting on the subject…stay tuned!
The views expressed herein are those of the author and do not necessarily reflect the views of Ernst & Young.