Twitter usage is exploding, and some companies have included tweets in their e-Discovery policies and processes. But a lot of other companies - maybe yours? - haven't done so because Twitter posts are so, well, "different," aren't they? Not in the eyes of the law, they're not, and your exposure is growing as fast as your company's Twitter usage.A recent blog entry from Gartner e-Discovery expert Debra Logan gets to the heart of the matter:

"Twitter posts are like any other electronically stored information," explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C., and head of the firm's Electronic Discovery unit. "They are discoverable and should therefore be approached with all appropriate caution." Winter said tweets could pose a myriad of legal problems, from the unauthorized posting of copyrighted material to the disclosure of trade secrets or confidential information to explicitly actionable behavior like libel.

So, Logan advises, "you do need a Twitter policy, but that policy mostly consists of common sense." But after passing along that counsel, the Gartner expert quoting the law-firm expert then hedges a bit:

"And of course, everyone is likely to act reasonably most of the time. But. The piece goes on to suggest that 'data needs to be preserved,' implying that we should all be saving Tweets, I guess. That's where the confusion comes in."

"I guess"? "We should all be saving Tweets, I guess"? Well, with advice like that, Logan is surely on target with her next sentence when she says, "That's where the confusion comes in."

Okay - perhaps this idea from Logan's post will clear up the confusion: "So, do be cautious but being cautious does not involve a policy of saving everything forever just in case." Got it now?

Now, I'm no lawyer, and I don't play one on TV, so I apologize for BUT ACCEPT NO LEGAL RESPONSIBILITY FOR any confusion this post might have caused, and I neither create nor imply any bailments when I urge you to read Logan's post. That post doesn't have a link to the Bryan Cave source she cites, but I checked and it requires registration, which you can do here. And now, back to Gartner's Logan for her final closing arguments:

"As the lawonline post points out 'de-contextualization' on media like Twitter is a lot more likely, due to the limited bandwidth," Logan says in her post. "So if you leave it hanging around and it does become subject to discovery, there is gonna be lots more explaining to do. And if you do have a policy, be sure to enforce it, because having an un-enforced policy is worse than no policy at all. Here's my tip of the day - users don't go and clean up old email files or any other kind of files even if you ask them nicely. Sometimes they don't act reasonably or even in their own best interests. Enforcement is a function of legal consideration coupled with IT implementation."

This court is adjourned.