The Masters Series completed its latest installment last week in San Francisco. Its purpose is to shorten the divide between the recent technological advances in eDiscovery, data protection, records management, and other relevant areas. Although various topics involved eDiscovery, such as procurement, predictive coding, IP litigation, and data privacy, this article focuses on the knowledge shared in the realm of social media (“SM”).
The most astonishing SM revelation was the vast digital footprint left behind by our mobile devices and what can happen to this data during acquisitions of the companies tracking this information. Neal Lawson of iDiscovery Solutions, Inc. opened up the presentation with this hypothetical scenario:
- Neal’s wife wanted him to use a Whole Foods‘ Groupon to purchase some groceries,
- He then checked traffic and parking conditions using a mobile app on his mobile device,
- He checked-in using Foursquare during a spare moment,
- Not surprisingly, he had a chat Angelina Jolie, who he bumped into at the store and she posted that she met Neal on her Facebook page,
- Neal then obtained their grocery list using Grocery IQ, and
- Finally rated the total experience on Yelp.
This little exercise provided useful data on where he lives, where he shops, what he buys, when he buys it, who he meets and talks to, and what his opinion is about the whole experience. Given that this was a fictitious example, the staggering fact that these small companies have abundant access to this type of information. They may be acquired by larger conglomerate companies like Facebook who will use this data to market others’ products and services to us.
Further, social media’s role in litigation is intensifying drastically. Trial attorneys are using SM to research opposing parties and even potential jurors in real time via tablets, laptops, and smartphones in order to determine whether or not they would be receptive to the attorneys’ arguments based on their postings, pictures, and comments via LinkedIn, Facebook, and Twitter. Moreover, defamation, cyber-bullying, and employment litigation cases have become more and more prevalent since SM’s ascension as a household name and activity. Companies are openly using SM to weed out applicants. The presenters stated that 25% of companies research applicants using SM. Out of that 25%, 85% said that they were less likely to hire these individuals if their postings were unprofessional.
Companies need to be mindful of some of the hazards of conducting such investigations, such as Title VII of the Civil Rights Act of 1964 (race, religion, sex, ethnicity, sexual orientation), the Age Discrimination Employment Act of 1967, the Americans with Disabilities Act, the Fair Credit Reporting Act, and various insurance claims that may arise because of causes of action based on same. The advice given to companies by the panel was to take action. Companies should come up with policies and procedures regarding SM, develop a technological solution to prohibit use of SM at work, and monitor their own SM outlets to make sure that they defend their brand. There are no guarantees in preventing litigation. In this day and age, employers cannot bury their heads like ostriches and pretend that SM is going to go away.
Everyone is participating in this arena. Apps are being created daily. Bill Belt of LeClair Ryan even mentioned that his parents Skype from the West Coast to see their grand-children more frequently. The amount of data and lack of privacy is increasing rapidly. Aaron Crews of Littler Mendelson pointed out that if we have wi-fi enabled on our mobile devices, wherever we go, we are constantly accessing open wi-fi networks and communicating personal data to these routers, such as name and type of device, time and date, and other possible identifying information. Legislation, consumer advocates, and privacy rights groups will need to establish some baseline standards of how to protect our rights, but until then, we are at the mercy of the “free is me” revolution. Big business is driven by giving things away for free in exchange for signing us up and signing our lives away of all of our personal preferences and shopping habits in perpetuity.
eDiscoveryJournal contributor Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.
For more information, please visit http://www.klnconsultinggroup.com.