Privacy and Legal Ramifications in the Social Media World

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In an interesting exploration of the social media world, Malcolm Gladwell of Tipping Point fame, analyzes the impact of social media in The New Yorker here. His analysis contends that social media cannot enact true social change because "...The platforms of social media are built around weak ties," and social movements have historically grown from the bonds of close ties. As evidence, Mr. Gladwell suggests that the Greensboro sit-ins in the 1960s directly supports that the bonds of close ties are the only manner of enacting true social change.


I cannot disagree more, and The Economist's Free Exchange presents, what I believe, is a clear rejection of Mr. Gladwell's theory here. As suggested by Free Exchange, "One mistake is to assume that social media merely increases weak ties...Networks like Twitter and Facebook reduce the cost of minor interactions, which leads to more minor interactions." Which leads to the ability to manage more strong ties. Furthermore, Mr. Gladwell fails to see that the internet's social network is much more like the Greensboro network than he could imagine. Free Exchange comments on the benefits, "Networks, on the other hand, are bottom-up enterprises. They're very difficult to shut-down or break." The same is true of this today as in the 1960s, when sit-ins were staged across the country. 


Image via CrunchBaseThe influence of social media cannot be underestimated, and it will continue to grow. The effectiveness can be proved. In the last month a lone, forums across the internet have spurred over $250,000 in donations to American classrooms and a Rally in Washington, DC. The genesis of which came from one man's post. The proof is simply in the pudding.


Social media is now an avenue to spur action, and in the very near future companies and large organizations will be fully harnessing this power. Applications like Yammer  and Jive are starting to create internal networks to share knowledge and gather it into action. But like Toby McGuire will tell you, with great power comes great responsibility. Over at Law.com, Ken Strutin explains the expanding liability of social media here. He notes that on Facebook, Linked In, MySpace, and Twitter:

The problem is that a defendant's postings are usually impulsive, the product of or encouraged by exchanges with friends, and produced under a vague notion of online privacy. Once the damage is done, a concerted effort to present a complete picture might be the best option to ameliorate its impact.

This sort of personal liability will extend to the corporate world as well, especially as we see social media begin to overlap in both spheres. However, in the majority of today's corporations, there has been no concerted effort to understand what type of content leaks onto social media from their networks and employees.

The need here is to be able to archive these interactions, and ensure that employees understand what this means. Social media will exist in perpetuity on the internet, yet the company may not have access to this data if it is not archived. Should litigation hit, serious holes in the discovery process could occur, having legal teams face sanctions for negligence or worse. These are holes which, although not included in many cases now, have pointers on different servers and databases across the internet. It is not the simple case of just one missing file here or there, which in itself could be a huge problem. 


Soon enough, as courts begin to better understand the impact of social media, so too will their enforcement of it as relevant and discoverable. Companies must be prepared.

Everyone's Heads in the Cloud

Image via WikipediaThese days it seems as if everyone wants to be in "the cloud". This term is ambiguous at best, as the meaning and ultimate usage of such a system can vary widely. I believe a corporate deployment of cloud computing harnesses resources which are already in place and efficiently allocates these resources across various applications. These resources can be data or processing cycles. 

On the other hand, the reliance on a third party to completely outsource the storage of data or processing can be unreliable and dangerous in certain situations. Specifically, the Patriot Act allows the government access to hosted data service providers without their clients knowledge. The ability to look at private corporate data stored on that network, therefore, would compromise the integrity of a corporation. Similarly, outsourcing any processing lends the corporation to higher IT liability and bandwidth concerns.

Virtualization of a corporation allows for the best of both worlds, a reliable and efficiently run IT environment. However, in addition to this environment, IT folks should be sure that the mission critical software they run are architect in a manner to take full advantage of this.

GRID architecture allows software to use hardware with high availability, the ability to scale, and a consistent fail-over system. In a follow-up post I will go into a little more detail on what GRID architecture entails.

Oracle Open World --- TBD Later

Yesterday I spent the day at Oracle Open World, their giant event covering downtown San Francisco. I'll go into more detail in some of the lessons learned there. Unfortunately, I'm also currently battling a cold, so analysis will have to wait till next week.

Edit: I thought that last week I'd be able to find more to dig out of the Oracle convention, but there's really not much to parse out here that was relevant to e-Discovery or general records management that would break the trends. There continues to be the feeling that data is continuing to grow for companies, and that they need more storage (always more!) -- and of course Oracle should be meeting that need. The focus was less on the ability to reduce the amount of storage (which would cut into sales), but on availability and speed of storage (which differentiates the company). I think reducing data is a key point to pound home here, but that's not going to be in the best interest of most of the parties involved in the Oracle World.

Harkabi v. SanDisk Revisited

Image via WikipediaI found an interesting Blog Post by K&L Gates today, going further in depth on the repercussions of the Harkarbi case here. If you were interested in the case I think its worth a look. For a brief overview of what happened you can read over my previous blog post here, but I'd definitely recommend reading K&L's analysis for a more thorough interpretation.

Europe: In-House Attorney-Client Out the Window

In a stunning decision yesterday the European Court of Justice held that communications between the company and in-house lawyers are not protected from disclosure or discovery.

Law.com quotes London solicitor J. Daniel Fitz, former chairman of the board of Association of corporate counsel, "The ECJ ruling has serious ramifications as it denies in-house attorneys and multinational businesses in Europe and elsewhere the critical legal counsel on competition law matters that companies working in today's global legal marketplace require."

The Guardian's Julianne O'Leary believes that this is an unjustified knock against in-house counsels, who will be unable to do their jobs effectively -- that is to provide sound legal advice to their employers. Law.com's Marcia Coyle agrees in that the ruling is "a blow to multinational businesses".
 
The ruling holds that privilege will only be granted pertaining to "independent lawyers," that is "lawyers who are not bound to the client by a relationship of employment."

I agree that this will drastically reduce the abilities of in-house counsel to provide legal advice, fundamentally changes the role of in-house counsel and will force companies to lean on outside counsel more often. A few things quickly off the the top of my mind which this also affects in the EU:

-Cost of litigation will increase as use of outside counsel becomes more prevalent
-Role of in-house counsel will be drastically retooled to reflect the increased transparency
-Electronic discovery will become more important since in-house counsel communications are now discoverable
-Multinational corporations will need to be increasingly careful policing their communications

Ball Sees Decisions

Over on Craig Ball's EDD Update, he posts in reference to Zubulake that: 

Total reliance on an employee to search and select won't cut it in Judge Scheindlin's court. 

The decision puts a nail in the coffin of custodial-delegated holds and persuades me that, at least in the SDNY, no nabob should delegate preservation and search to minions, and certainly no lawyer should leave search to clients alone.  The opinion prompts further resignation to keep everything--especially all e-mail--and cease rotating tapes [s]hould someone so much as whisper the word "lawsuit."  

Mr. Ball is an e-Discovery thought leader and has practically written the book on the subject. In this case, I could not agree with him more and this relates directly to my last post. ESI must be managed centrally; relying on custodial-delegates is just not defensible AND is inefficient. There is no reason to keep high-cost, high-liability processes alive when there are known processes to replace them.

Extenze That Retention Policy

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From The Modern Archivist's Adam Sand: 

In Takeda Pharmaceutical Company Ltd. V. Teva Pharmaceuticals USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010), a patent dispute between two pharmaceutical companies, the court ordered that the relevant time period for all discovery requests be expanded to include the past 18 years.  Because the plaintiff had conceived of the patent and reduced it to practice 18 years ago, the documents from the entire time period may contain relevant data.

 This is not a new trend. Companies are being forced to hold onto their ESI for longer and longer periods of time due to the increasing liability of lawsuits. In specific, companies with a critical mass of intellectual property (especially in the case of long product development cycles such as in Pharma), can be hamstrung to hold onto their information for years.

 Although it is currently unclear as to an industry standard or mandate, as Mr. Sand continues, "it is possible that more organizations will be holding on to their ESI for ten years or more." This brings to the fore two relevant issues:

 1. How are companies going to realistically enforce these policies?

 2. How can companies manage the vast amount of data these retention policies force them to hold?

 The solution for the execution of the policy is to simplify, and interestingly enough the solution for the storage will follow. In order to enforce such a policy, ESI must be centrally managed. There is no way to ensure proper life cycle management if there are either multiple copies or multiple policies or some combination of both. One copy, one policy will ensure proper retention compliance.

 Storage, then, will see dramatic reduction if there is only one copy! Check out www.zlti.com for more.

p.s. We are launching a new site this week, so be sure to keep checking it!