Statistically speaking, text messages and social media are everywhere and because of their omnipresence the e-discovery challenges they will present are inevitable. Let the following statistics sober you as you think about the task ahead.
-80% of US cell phone owners send and receive text messages.
-31% of text messages users prefer texting over phone calls.
-Young adults send and receive on average 88 text per day.
-In 2012, Facebook reported 901 million active users, up from 680 million in 2010.
-Approximately 300 million photos are uploaded to Facebook every day.
-3.2 billion Likes and Comments are posted daily.
As information managers what are we going to? The most important thing we can do is be proactive. Aside from that, there are best practices but none of them are perfect in area such as this which is ever changing.
When dealing with text messages here are best practices offered by Mayer Brown
Develop policies and procedures. Develop policies and procedures that ensure the organization and its personnel control risk and comply with organizational needs. Policies and procedures must consider the use of text messaging in the context of the organization’s business and its compliance and supervisory programs. Similarly, an organization that allows its employees to conduct business through text messaging should establish a routine retention policy (which may include a policy that text messages need not be preserved at all). Each policy should clearly identify the individual employees, teams or groups authorized to utilize text message services to conduct business.
Ensure proper training. As with all electronic communication policies, clear management directives and appropriate employee training are essential. Employees must understand the risks presented by misuse of this technology, as well as the benefits of appropriate use.
Enforce texting policies. Organizations must be vigilant and consistent about enforcing text messaging policies, and ensure that all relevant departments are kept apprised of enforcement developments and are involved in the effort. A non- or inconsistently-enforced policy can be worse than no policy at all.
Anticipate discovery concerns. Advance planning can mitigate the risks that arise in preserving and producing text messaging data. Counsel should institute a plan for collecting relevant text message data, and ensure that litigation hold letters specifically identify text messages on company-issued and personal devices as among the categories of documents and data to be retained, both to ensure that the clearest possible instruction is given and to document compliance with preservation obligations. Counsel also should understand the terms of the company’s contract with any third-party provider that stores text communications, and the potential discovery consequences.
When dealing with preserving social media Exterro offers these recommendations
Conduct a Data Assessment. Organizations should conduct a comprehensive data assessment to identify what social media information is held, where it’s stored and how it’s generated/used within the organization. Understanding these factors is the first step to developing protocols on how social media information can be used (or defended against) in legal matters.
Create a Social Media Plan. There is not a one-size-fits-all approach for creating a defensible comprehensive social media plan. Each organization is different. While these policies should not be overarching restrictions of speech (i.e. not violate federal labor laws), they should be specific and include real-world examples of how they must be applied. Possible restrictions could include specifying the acceptable use of social media profiles for company use or a ban on disclosing any confidential organizational information (e.g. trade secret, IP disclosures, etc.).
Leverage Technology. To preserve and collect social media information, organizations can employ numerous different approaches depending on the resources available and the circumstances of the case. These approaches range from taking screen shots of a social media account to more sophisticated techniques, like creating a publisher application programming interface (API) that enables data collection directly from the social media site.
You can read more information at Preservation of Social Media: An Ongoing Challenge for Legal Teams
The Harvard Business Review has published a great read on this topic entitled, “Is Your Social Media Policy Useless.” If nothing else, this article proves there is no silver bullet solution to reducing risk of social media and text messaging in the enterprise.
*Statistics are from http://www.mondaq.com/unitedstates/x/230336/disclosure+electronic+discovery+privilege/Managing+The+Risks+And+Costs+Of+Text+Messaging+Electronic+Discovery+Records+Management+Tip+Of+The+Month
**Statistics are from http://www.exterro.com/e-discovery-beat/2013/04/04/preservation-social-media-ediscovery/