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Social Media & the Empowered
Records Manager
ARMA - Nebraska
Doug Kaminski, Senior Director for Information Governance
February 17, 2016
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AgendaAgenda
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Intro
Doug Kaminski, Senior Director
With more than 20 years’ experience on four continents, Doug has extensive
domain expertise in compliance, information governance, and eDiscovery. He
specializes in helping organizations of all types and sizes, including large, highly-
regulated companies and their outside counsel, make sense of information
governance, data security, and eDiscovery. Doug has helped hundreds of
companies reduce the cost and risk of how they manage their business records
and data universe.
[email protected] Twitter: DougTwit
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In the beginning, there was…
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“Only 10 percent of the 200 messages
employees receive per day are useful and 18
percent is spam.”
Thierry Breton, CEO
93,000 employees communicate with each other via instant
messaging and a Facebook-style interface http://bit.ly/1CSiwe3
It’s no longer just about email
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Wikis
Public
Instant
Messaging
Industry
Networks
Web
Unified
Communication
Future
Social NetworksEnterprise Social
Today’s social business
can’t use just one
collaborative
technology
to keep its
employees
connected
– it needs to
use them all.
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What IS Social Media?
– It’s simply communication via the internet.
• It doesn’t matter whether it’s done via LinkedIn, Facebook, chat, Skype or mobile.
• Most commonly considered the Big Three though that’s changing
• Includes blogs…and blawgs!
– It’s becoming widely used in business
• Social: networking, connecting, relationship building
• Media: marketing, promoting, opining
– It’s influencing many things
• Politics, purchasing, and primary source
• Reputation, relationships, and research
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Going Mobile
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Social Media at Work
+Pg. 11
“By 2015, the 20% of enterprises that employ social media
beyond marketing will lead their industries in revenue growth.
By 2016, 15% of businesses will deploy a horizontal social
technology layer that integrates with several business
applications.”
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What keeps GC’s up at night?
Source: Association of Corporate Counsel “Chief Legal Officer Survey 2013-2015”
2014
+1%
+1%
+4%
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+2%
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+1%
+5%
2015
+8%
+1%
+6%
+8%
+2%
+2%
+2%
+3%
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“The requirement for good retention, deletion and legal hold
policy management goes beyond email content. . . .
Organizations are looking to implement policies and
technologies that can do the same for social media, files, and
Microsoft SharePoint and other content.”
– Alan Dayley, Research Director, Gartner
Beyond Email
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Balancing Competing Needs
PrivacyBusiness and
AnalyticsRIM
LongerShorter Retention
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Supervisory & Recordkeeping Requirements
Regulatory Have recordkeeping, supervision, and other requirements
Examples: FINRA, SEC, HIPAA, FDA, GLBA, FERC
eDiscoveryDriven by ESI requirements, such as FRCP
Broader scope than regulatory
Applies to any organization that can be involved in a lawsuit
Corporate Internal policies on record retention
Internal policies on supervising for appropriate use
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• Just another form of electronic communication
• Electronically Stored Information (ESI) includes social
software content
– FRCP Rules 26 and 34, new revisions and Notes
• Content is determinative, not the channel
– FINRA 10-06 and 11-39
– IIROC 11-0349
– FERC Order 717, CFTC Part 4 amendments
– FDA draft guidance on off-label usage (Dec 2011)
• But capture is challenging!
How is Social Content Treated?
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Social Media & Case Law
• Workplace issues have been escalating quickly
• Usually fall into three big buckets:
– Negative statements from employees concerning their bosses, customers, co-
workers, products or services sold, compensation, benefits, work hours &
rules.
– Blatantly inappropriate statements, harassing/bullying, racism, sexism, and
other “isms”. Political statements and misrepresentation.
– Ownership and privacy
• Admissibility and authentication is key (MD v. TX)
• Growing areas: discrimination, defamation, and SOP
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2X annual tally of social media evidence cases doubled each year for the
past several years – John Patzakis, Attorney/CEO of X1 3
Skyrocketing “…courts and commentators alike have noted that discovery of social
media is now routine” – Gibson, Dunn & Crutcher 21
The Rising Tide of 3.0 Cases
1. Source: http://www.insidecounsel.com/2013/11/01/technology-is-instant-messaging-the-next-email2. Source: Gibson Dunn, “2014 Year-End Electronic Discovery and Information Law Update,” Jan 20, 2015 3. Source: New York Times, “Social Media a Trove of Clues and Confessions,” Feb. 16, 2014, http://nyti.ms/1FlYTjK
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Treated as just another form of electronic communications. Content is determinative, not the channel1
2 Sanctions increasing again, spurring proactive information governance and defensible disposal*
3 More cases with social content pivotal to incidents
4 More cases with preservation lessons
What’s Trending in 3.0 Cases?
* Source: Gibson Dunn “2014 Year-End Electronic Discovery and Information Law Update” Jan 20, 2015
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Snapshot of Cases Turning on 3.0 Data
ESI includes IM. Defamation; conspiracy; statements of Mayor.
Defamation; unfair competition; disparaging comments re: business
Twitter; LinkedIn Fictitious Profile
Shepherd v. McGee (Nov. 7, 2013) Wrongful termination suit. Child protective services caseworker was fired for posts about parents taking advantage of welfare system
Lester v. Allied Concrete Co. (CL08-150 - VA Cir Ct Sept 1, 2011)
Plaintiff and counsel sanctioned for social media spoliation
AvePoint Inc. v. Power Tools Inc. (Nov. 7, 2013)
Richards v. Hertz Corporation (November 14, 2012)
Personal injury suit. Facebook content, such as status reports, emails, photos, and videos are discoverable if relevant to the matter.
Gatto v. United Airlines (D.N.J. Mar. 25, 2013)
Spoliation and adverse inference instruction
Social Media
FMLA case, properly tailored request for production
Facebook, Twitter et alWilkinson v. Greater Dayton Reg’l
Transit Auth. (SD OH May 9, 2014).
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ESI includes IM. Defamation; conspiracy; statements of Mayor.
Employer not required to preserve text from employee cell phone
Text messages
In re Pfizer, Inc. Securities Litigation ((S.D.N.Y. Jan. 8, 2013)
Company breached duty to preserve; legal hold to include eRooms
eRooms, Collaboration Platforms
Southeastern Mechanical Svcs v. Brody (M.D. Fla. Aug. 31, 2009)
Failure to preserve BB content led to adverse inference instruction
BB Text & Calendar Entries
Cotto v. Costco Wholesale Corp. (D. Kan. July 24, 2013)
Barclays $3.75M fine from FINRA. Systemic failure to record and retain IMs
Bloomberg IM
Saliga v. Chemtura Corp. (D. Conn. Nov. 26, 2013)
Compelled production of IM. Discrimination - race, gender, religion
Instant Messaging
ESI includes IM. Defamation; conspiracy; statements of Mayor.
Instant MessagingUPMC v. City of Pittsburgh (W.D. Pa. Oct. 25, 2013)
Snapshot of Cases Turning on 3.0 Data
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Social Content Challenges
1 Unlike email, social content is dynamic and conversations channel hop
Searching can be difficult and costly without proper capture and archiving
Can easily miss deletions and modifications where native platforms
only capture at time of legal hold
Greater over-preservation risk without granular archiving capabilities
to set precise content disposition
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Two Approaches
• Reactive - capture data once required (cons)
• Cooperation with both parties and networks
• Explicit agreements and privacy concerns (NLRB)
• Use of “screen scrubbers” or API based tools
• http://www.x1discovery.com/
• Proactive – capture data as it’s created
• Depends on need and industry
• How much is too much?
• Archiving vs. active capture vs. site monitoring?
• Many, few, broad
• Best solution for you will depend on your needs/regs
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Best Practices
• For corporations:– Have a policy that covers social media usage at and away from work
consistent with NLRB guidelines
– Balance social with productivity
– Invest in training
– Harness the trend: use internal social for collaboration
– Be careful of privacy rights if monitoring
• For law firms– Include social in depositions, discovery requests, etc.
– Learn how to tailor requests… no fishing
– Don’t forget mobile access
– Higher standard of care for client/matter info, counseling on same
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12 Best Practices to Capture & Archive Social Content
1. Get visibility of all real-time
communications
2. Understand that native functionality
may create gaps
3. Define policy & strategy that reflect
use and need for social
channels…annually
4. Provide education for your users on
acceptable use and retention
5. Include in custodial interviews and
document requests
6. Apply disclaimers to
communications
7. Recognize that context and
complete capture matter!
8. Don’t treat social content like
9. Consider active compliance to
prevent lawsuits
10. Record and store
communications in a central
location (archive/ECM)
11. Align people, policies, and
technology
12. Automate the process where
you can
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What About You?
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Enhancing Your Effectiveness
• Social media can be a platform for success– Access to peer groups and knowledge
– Networking…even for introverts!
– Advancing your career
• What matters?– Building your network
– Becoming a resource…get involved!
– Becoming a brand
– Spending your time wisely
• Remember the rules…
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Improving Your Image and Career
• Which networks?
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Improving Your Image and Career
• Your profile– Separate business and family
– Make it more than your job title
– What message do you want people to be left with?
• Best practices– Clear, appropriate picture
– Title that engages and intrigues
– It’s not a resume, but it is
– Make it easy to learn more or find you
– Connect to other social media accounts
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Improving Your Image and Career
• Building your network– Don’t use the standard invite…personalize!
– Channel your inner Kevin Bacon…reduce degrees of separation!
– Balance your network on various sites
– Use the People You May Know tools
– Never stop building on LI
– Join Groups and participate
– Use tags and lists on LI and FB
– Follow and get followed on Twitter
– Check your score on Klout:
– www.klout.com
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Improving Your Image and Career
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Improving Your Image and Career
• Becoming a brand– Your most valuable asset…you!
– Consistent messaging, tailored to each outlet
– Read and reread before you post
– Breathe long and deep before you react
– Post to Groups (LI) and to Lists (FB)
– Tie in blawgs and articles
– Quotes others, share others, link to others (Klout check)
– Get others to do the same
– Be human, it’s OK
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Useful Links
• Gibson Dunn social media law update: http://bit.ly/1PrxqUt
• X1 Social Media Case Law 2012: http://bit.ly/1PrAf85
• Proskauer social use survey: http://bit.ly/1p28AtQ
• EEOC on social media use: http://1.usa.gov/1ozNkZU
• NLRB on social media: http://1.usa.gov/1nL8Iv3
• MoFo blawg post on social: http://bit.ly/1fWez0s
• The Rules: http://bit.ly/1lD4XK5
• LinkedIn common mistakes: http://onforb.es/1iFJSyK
• Inc on personal brand building: http://bit.ly/1qLcMN2
• PcMag social privacy tips: http://bit.ly/1yR1kVi
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Summary
• Social media can be a powerful tool and ally
• Use has been increasing at work and on mobile
• Responsible use, clear guidelines, and training are key
• Case law and bench experience are growing fast
• Understand the differences when social becomes evidence
• You can use this powerful tool to boost your worth
• Diligent posting and consistent messaging = brand YOU
• Embrace and build your network but keep safety in mind
• Have fun, be human, be kind
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