What Are the Latest Trends in Social Media and Litigation?

This week I plan to dedicate a few blog posts to highlighting some of the latest trends in social media and [fill in the blank]. Last month, the good folks at Fulbright & Jaworski, released their 2011 Litigation Trends Survey. The 2011 survey gathered input from 405 in-house counsel, including 275 U.S. respondents. Launched by Fulbright in 2004, the survey canvasses corporate counsel on litigation issues and trends.

Here's what they found with respect to social media and litigation:

• In the past year, during litigation, over 80% of companies did not preserve or collect data from an employee's personal social media account.
• Only 13% of those surveyed had to produce electronically stored information from a social media site as part of discovery during litigation.
• Some companies are choosing to block internal network users from accessing social media sites, such as Facebook, MySpace and Bebo (41% block); Twitter and YouTube (33% block); and LinkedIn, Plaxo, Tumblr, StumbleUpon, and Digg (23% block). [What's the point? Most employees have smartphones that can access these sites anyway. By permitting access to these sites, at least companies will be able to weed out the least productive employees - EM].
• 91% of U.S. respondents reported that they allowed their employees to conduct business on mobile devices. But only 30% of respondents had to preserve or collect data from them for a litigation or investigation.
• The biggest challenge in conducting discovery from mobile devices was that they were widely distributed and disconnected (53% of respondents). Of those concerned about litigation arising from their employees' use of mobile devices (34%), the majority are worried about the loss of customer or proprietary data.

These numbers suggest to me that most attorneys are behind the times. Why aren't companies preserving and producing social-media content in discovery? When a corporate party receives a document request that is broad enough to include (but does not specifically request) social-media content, many of their lawyers don't think to remind clients to preserve and produce it. Worse yet, my guess is that the percentage of lawyers who specifically request social-media content is even lower. 

However, just as lawyers eventually got hip to requesting email as part of discovery, eventually, the social-media numbers will rise too.

This article was originally published on Eric B. Meyer's blog, The Employer Handbook

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