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Corporate eDiscovery Is Complicated by Texting, Mobile, and Social Media

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By Casey C. Sullivan, Esq. on July 24, 2015 12:59 PM

Social media, text messaging, and mobile devices are nothing new, but they are increasingly being integrated into business life. Whether it's recruiting an employee through Twitter, closing a deal via text message, or friending your colleagues on Facebook, our mobile lives are becoming more and more integrated into our work lives.

That means mobile technology is also becoming more central to eDiscovery. Texting, mobile apps, and social media are the "new frontier" in eDiscovery, according to a new report by the law firm Gibson Dunn.

Yep, Spoil8tn Applies 2 Ur Txts

You may "lol" at the idea of preserving all employee texts, but when it comes to text messaging, preservation and spoliation are a major concern. Failing to preserve text messages is increasingly resulting in court-imposed sanctions, Gibson Dunn notes.

Recently, a federal district court in northern California sanctioned defendants for deleting text messages and discarding mobile devices. That court in that case, Clear-View Technologies v. Rasnick, also ruled that the duty to preserve those texts arose more than two years before litigation. Businesses looking to prevent similar sanctions in the future may want to start hording employee cell phones long after they've lost their use.

Text messaging works both ways, too. A text itself can trigger the duty to preserve, long before litigation has begun. In Clear-View, for example, the duty to preserve was triggered when the plaintiff drunkenly texted defendants "don't call my shareholders with your b.s.... keep it up and you'll find [yourself] in court." The fact that it was a threat made while drunk didn't matter.

Social Media and eDiscovery

Social media poses some particularly tricky issues when it comes to business -- beyond whether it's appropriate to friend your boss or follow your colleague's Instagram. Social media is increasingly being used as evidence in litigation. Like your mom wondering how to use Facebook, courts have been struggling to resolve issues around authentication and relevance of social media evidence.

So how can lawyers get into social media accounts? As always, there needs to be a factual predicate to support a request for discovery. Even then, courts have resisted social media fishing expeditions. Some courts have refused full access into a party's social media accounts on the basis it would be a violation of the party's privacy.

The Gibson Dunn report offers a few suggestions to companies looking to mitigate their risks. Encouraging Bring Your of Device policies, setting up separate spaces for work apps on mobile devices, and using company-specific texting apps, with automatic back up, can all help avoid an eDiscovery headache down the line.

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