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I was fortunate to be a part of a panel discussion in Chicago this week led by AIIM skipper John Mancini. I got the chance to sit side-by-side with some top notch panelists and share my ideas and experience with a great audience of ECM practitioners.

For those of you who missed the event, you can get a flavor for the discussion by checking out AIIM’s recap of it as well as from @ljseverson’s blow-by-blow Tweets.

What I wanted to do here, in contrast, is to extend the conversation a bit by being deliberately provocative in the hopes that some of you out there will jump in and share your thoughts with us all.

Social Media will not now, or ever, substantially change the e-discovery landscape

John started the session with a slide of provocative statements and predictions about enterprise content management that we panelists were asked to chime in on—a great way to get the room (and the panelists) warmed up, by the way.

One of them had to do with social media and e-discovery: Some company will get in big e-discovery trouble for stuff that occurs on a public social network.

For the most part, folks around the horn and in the room agreed.

So, wanting to be provocative, I piped up and said that I didn’t think this was likely to ever happen; that there are lots of big companies already out there, many of them in highly regulated industries (financial services, banking, high-tech manufacturing, health care), using social media very aggressively, and to date we haven’t seen any of the usual nightmare scenarios come to pass.

Although no one really called me on it, they could have: there’s the investor’s fallacy angle (i.e., past performance doesn’t predict future results), or the critical mass angle (i.e., once the entire Fortune 2000 is using social media aggressively, the likelihood of problems will go up exponentially), or even the maturity angle (i.e., courts are not yet mature in their stance on social media and will likely sink their teeth into it much more than they do now).

I think these are pretty good as far as straw men go—any or all of them may well end up proving me wrong over the long haul. But let me say a few things about why I think I’m absolutely right.

When’s the last time you saw a smoking gun?

The underlying assumption of the view that social media will get a firm in big time e-discovery trouble is that the central litigation risk to an organization is having a smoking gun document come to light. There are a couple of problems with this assumption, however.

First, a smoking gun lurking out there in your corporate information is an ethics and corporate culture problem, not a content management one. If your employees are routinely doing business in ways that break the law or are non-compliant—no amount of records management or frantic shredding is going to save you.

What drives the risk and cost of a smoking gun Tweet or blog post isn’t so much social media, it’s doing business in unethical or illegal ways. Whether that happens in an interoffice memo, fax, email, phone call, blog post, YouTube video, or Tweet is really a secondary concern.

The truth is always less glamorous

Second, if you look at the real risk and cost to an organization around e-discovery, it has much more to do with the how expensive and difficult it is to comb through the mountains of information in scope for discovery efforts, i.e., the terabytes of duplicate, outdated, and irrelevant content in shared drives, SharePoint, Lotus Notes, email attachments, report management systems, line of business applications that’s long past its legal or operational usefulness (if it ever had any in the first place).

So although we all cringe at the idea of opposing counsel dramatically holding up a plastic bag in front of an open-mouthed jury that contains a print out of a dastardly email from the CEO, eventually bringing down the whole organization (which does sometimes happen ala Goldman Sachs)…the chances of it happening at your organization are quite honestly very slim.

On the other hand, the chance that you’ll flush lots of money and time down the drain on a regular basis to discover content that you didn’t need to? 100% certain.

Let me be a consultant for a minute…

…and play both sides of the fence to win the argument—don’t you love it when we do that?

Despite the fact that I don’t think the e-discovery landscape will ever change substantially due to social media, I emphatically believe that there are significant legal (and compliance, and audit) risks associated with corporate use of social media. This content is subject to regulation in most industries (or will be shortly), is on its way to being part and parcel of discovery requests, and often lives outside the typical ECM reach of an organization (whether because it’s outside the firewall or because it’s on systems that don’t have robust ECM/RM controls built in)—how could it not pose significant risk to an organization?

But before you tsk-tsk and wag your finger at me for contradicting myself and think I’ve lost the argument, consider that these risks aren’t at all specific to social media or E2.0, they’re the same E1.0 risks organizations have been facing for years: shifting/emerging regulation, discovery scope, audit findings, over retention, content silos.

Looked at this way, social media is really just another category of content that incurs to the tried and true costs and risks that the rest of our content does.

The final word

I’ll leave you all with a parting thought: the very real social media meltdowns we’ve actually seen to date (like that viral song about United smashing the guy’s guitar, the crowdsourced outrage over the BP oil spill, or America’s love affair with the  Southwest flight attendant who did what most folks never have the guts to) aren’t about social media per se. They’re really just good old fashioned E1.0 corporate screw ups around customer service, marketing, product development, operations, etc.

Social media’s contribution in these cases is that it facilitated a wider audience for the screw up than would have been possible without it…but that’s a very different role for social media than the doomsday scenarios most folks envision (and that to date just haven’t materialized, despite lots of big organizations using social media in a substantial way).

So there you have it: the fears and prognostications out there about social media’s effects on the shape of e-discovery are a red herring—looking forward to hearing what you all think about it!