The short answer: Yes, according to Jamie Brigman, director of product management and technical strategy at Applied Discovery. Brigman's employer, a LexisNexis subsidiary, does electronic discovery work for legal cases. Though not common today, Brigman said the information that companies and their employees share on social sites is poised become a significant piece of the discovery process during civil litigation over business-related disputes.
"[Lawyers] are always concerned about risk," Brigman said in an interview. "They're looking for what kind of information is discoverable in the future."
The potential legal risks of social media increase each time a site adds features intended to better collect--and share--information, business or personal. Take Facebook's recent platform overhaul, which included the introduction of the Timeline feature.
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"Their goal is to be able to tell a story," Brigman said. "It parallels, in litigation, what lawyers are trying to do: Tell a story about the person or the issue that they're investigating."
If you're like me, legalese is a foreign language, so first a definition: Discovery is the part of the litigation process in which each side has the right to access and review each other's information--including sensitive, private data--if it's deemed relevant to the dispute. Brigman said social media is not a common part of the discovery process today outside of divorce and personal injury cases. That doesn't mean it won't become one in corporate lawsuits. Brigman pointed to the legal industry's relatively slow move to view email in the same way as it treats paper-based documents. While email began changing business communications in the 1990s, Brigman said the medium didn't become a standard part of legal discovery until around 2004 or 2005. But just because lawyers weren't quick to recognize the prevalence of email didn't mean businesses--or more to the point, their employees--could click "send" without consequences.
"Electronic information is persistent," Brigman said, adding that once email became an everyday part of discovery, it was retroactive--what happened on email did not stay there. "All of that information was still around. With Facebook, it's even worse."
Brigman expects a shorter lag time for the legal industry with social media because of an ever-increasing cultural comfort with technology--it wasn't so long ago that email had a certain magic, and now it produces yawns. When the legal liability of social media data grows, the challenge for small and midsize businesses (SMBs) should sound familiar: Limited resources. Whereas a large company typically has teams of people devoted to legal, HR, brand management, public relations, and other areas charged with keeping the company in good standing, SMBs often have individuals handling those same functions--sometimes simultaneously.
"[SMBs] don't have the ability to go around policing every time they're mentioned in the public," Brigman said. "They certainly don't have the same amount of resources, typically, to lock down information."
Brigman noted two social scenarios that could expose SMBs to risk in legal discovery. The first involves employees acting, perhaps with the best of intentions, as official representatives of the business in social settings, even if they're not actually authorized to do so. Example: a consumer registers a beef with a company's product or service in an online forum, and an employee of that company chimes in to try and help. That could expose the company to legal risks down the line.