Much has been made of social media’s explosive growth the past 3-4 years, from quirky technology used solely by the under-20 crowd to ubiquitous medium that is increasingly dominating communication – even at the corporate level.  Just how quickly has social media become a force to be reckoned with?  Facebook is reportedly worth more than $10 billion, and CEO Mark Zuckerburg is one of the most sought after meetings around.  The mighty FTC focused its ire on 4-year-old Twitter for allegedly failing to secure consumer information before settling with the social media darling, a remarkable development considering the fact that Twitter did not exist until 2006.  Not wanting to be outdone, the Library of Congress announced plans to archive every tweet ever created.  Even Gartner Group joined the fray, proclaiming that social media would become the communication method of choice for 20% of businesses by 2014.

Which brings us to eDiscovery.  Discovery has long been the province of figuring out who knew and said what, to whom, when; in this context, social media is a treasure trove of ESI that makes email look like child’s play.  As we have discussed early and often, social media is unique among all other forms of communication in at least 5 ways, all of which make it a plaintiff lawyer’s dream and a complexity for any litigant:

1. Social media’s speed and breadth amplify communication velocity – which can be good when the content being communicated is appropriate and important, and bad (in some cases very bad) when the content is misleading, inaccurate, proprietary or fraudulent
2. Social media is not a secure form of communication; Facebook and Twitter accounts can be co-opted or faked, which can lead to all sorts of unintended consequences (just ask Tony LaRussa)
3. Because it is so fast, social media lends itself to rapid communication that is often not reviewed – for accuracy, spelling, etc. – or otherwise proofread in many cases
4. Because the length of each social media “post” tends to be short (e.g. Tweets are limited to no more than 140 characters), it is often difficult to convey context or exact meaning, which leaves interpretation to the mind of the reader (or millions of followers) – whose motives may be highly suspect
5. In many cases, with Facebook, Twitter and LinkedIn being prime examples, corporations have no control over not only the content being created and disseminated, but the hardware on which such content sits…leading to some rather interesting preservation and collection issues.

Because of these uniquely powerful attributes of social media, lawyers and the companies they defend have already begun worrying about the possible ramifications of social media.  Social media is so new that caselaw is still evolving alongside the standards meant to shape such behavior; not surprisingly, this has led to a growing number of industry groups (like the InfoRiskAwareness Project) and seminal work by thought leaders like The Sedona Conference trying to define such standards.  Even the Supreme Court is dipping its toes into “emerging” forms of communication with the recent Quon case (OK, Quon dealt with text messages – not exactly cutting edge technology, but pretty modern for the Supremes).  Things are so unsettled that one can even get in trouble for not using social media under certain circumstances.

Should companies be worried about social media causing eDiscovery nightmares?  In short, yes…but not quite yet.  While its growth has been nothing short of spectacular, social media is still largely limited to younger workers for most communication and is not the tool of choice for the vast majority of business communication – at least not yet.  This will of course change as younger workers continue to enter the workforce, and older workers embrace social media’s power, breadth and immediacy, but as Gartner rightly points out these changes will take several years.  And because it is so new, social media has not yet reached the courts en masse – there has not yet been a Zubulake moment – so precedent must be developed.

Now is the perfect time to develop, vet, implement and measure compliance with a social media policy.  For most business, employees are going to use social media whether the business likes it or not; such businesses should eschew an outright ban on such activity (which likely cannot be enforced anyway) in favor of defining where, how and by whom social media should be used.  Awareness of challenges sure to arrive within a few years is a blessing in disguise – the more enterprises use this time wisely to prepare and begin to shape employee compliance with a sound policy, the fewer social media eDiscovery nightmares they’ll have in the coming years.