Web 2.0 Conflicts with E-discovery
Texting, Twitter - Popular with Everyone but Company Record Keepers
Each new technology that comes along improves communications, but businesses legally required to save such communications have trouble keeping up.
When e-mail replaced printed memos, e-mail archiving was needed to save those messages. If a company has to produce records, for a government investigation or a lawsuit, e-discovery software searches the archives for the requested e-mails.
Next instant messaging arrived, in which brief messages were sent from one person’s computer to another’s but disappeared soon after being read. Businesses concerned about the content of IMs first forbade them in the office, but eventually allowed IM once messages could be archived.
Twitter and Facebook
But e-discovery issues mount as new tools emerge, including text messaging, Web 2.0 social networking sites and even Twitter, a “micro-blogging” service for sending short messages from a computer or cell phone through the Web to selected recipients.
“Web 2.0 adds to the number of data sources and the total volume of information that one has to deal with in a corporation,” said Paul Brabant, vice president of e-discovery solutions at Epiq Systems, which provides software and services to the legal profession.
Text messages don’t run through an enterprise network, but the carrier network, so there’s no easy way to archive the messages, Brabant explained in a phone interview. BlackBerry smartphones, for instance, have a “pin-to-pin” feature that sends text directly between two devices. In that case, a company would have to develop a way to save text messages on the device, he said.
Definition of ‘stored’ is key Issue
New technology tests the definition of “electronically stored information,” the term in the Federal Rules of Civil Procedure in U.S. law that defines data that is subject to e-discovery. Text messages may sit on a carrier’s server or the internal RAM of a computer for mere seconds, begging the question of whether that information is “stored” or transient, he said.
A lawsuit could decide that issue. A U.S. District Court ruled in 2007 in the case of Columbia Pictures v. Bunnell that data in RAM should be preserved for e-discovery, but the case is on appeal.
Volume of E-discovery Data Grows
Increasingly, companies use social networking sites like Facebook for promotion. While Web pages can be archived, it just adds to the volume of data subject to e-discovery.
Wikis, Web sites whose content can be edited by nearly anyone, are also a problem, said Brabant. An enterprise needs to save each change in its wiki because an e-discovery request could seek not just what is posted today, but what was posted days, weeks or years earlier.
However, as new communications tools are created, the tech industry eventually finds a way to save important messages, said Kurt Leafstrand, director of product management at Clearwell Systems, a company that converts data from different file types into a format that facilitates e-discovery.
The industry found a way to save IMs and technology is becoming available to save text messages. “There are conduits for getting that information,” said Leafstrand in a phone interview.
Twitter is used by companies only for marketing, so far, making e-discovery issues minor, Leafstrand said, but one recent start-up is offering possibly the first enterprise Twitter. Yammer, launched in 2008, is limited to employees within a company who all have the same corporate e-mail domain name; message traffic is moderated by a company employee screening content.
“That’s another way that companies can control their e-discovery risk and also, and I think most employees would agree, create kind of a safer environment for communication,” he said.
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