Social networking and the retention of “e-communications”

By James Watson posted 05-24-2010 11:06


Travelling home from a long week on the road, once again I’m reminded of a growing challenge in the market.  The client I am advising is preparing to properly preserve and dispose of its electronic communications or “e-communications”.  And while the majority of e-communications remain e-mail, the bigger concern is all of the “chatter” that results from the various forms of social computing now available to its employees – most of which is generated, viewed, or updated outside of the firm’s firewall on various hosted services and web sites. 

What’s the firm to do?  Like many, their stance until this point has been a policy prohibiting employees from conducting any business-related activities using electronic communications channels other than the corporate network.  Good luck.  And why stifle all the creative energy, anyway? 

Take this BLOG, for example.  Let’s say I write something really nasty about Randy Kahn (which is easy to do, because he’s an ugly, bald man whose voice sounds like he smokes  couple packs of cigarettes every morning).  He sues me for slander.  In fact, he sues Doculabs, because I’m representing the firm in my participation with AIIM, and he knows Doculabs has a nice fat balance sheet and plenty of liability insurance.

Similar examples exist everywhere. A financial advisor with a profile on LinkedIn  highlighting the securities he specializes in, which a customer interprets as a misleading offer to sell. A vacation property owner listing a ski-house in Colorado on that includes pictures of the property that are dated and fail to show the garage under construction.  In each case, what is the “system of record”: AIIM’s web site, LinkedIn, VRBO? Each party’s printed copy of material in question?  Each party’s electronic copy, either downloaded or copied from the site?

So what can organizations do to leverage these new electronic communication tools, without inhibiting commerce?  Clearly, a lot has to do with an individual or firm’s risk profile in how aggressively they will sanction the use of social computing platforms.   And policies and procedures – with training – should help.  But can technology play a role?   Of course – yet the domain of electronic communications is changing so quickly and adoption of social networking for commercial purposes is rising so rapidly, the recordkeeping systems continue to lag.  In this client’s case, they have approved the use of certain tools – for example, LinkedIn – and they ask any employee to notify the firm of its use, so a periodic web-page crawler can archive a digital copy of what’s been posted.  Is it perfect? No.  But it is a start. 

It’s safe to assume we can expect a great deal of innovation in the coming years as clever firms and individuals figure out how to embrace the social networking communications paradigms, while at the same time mitigating risk and exposure.

#e-discovery #ElectronicRecordsManagement #legalholds