by Martin Bonney, Senior Director, International Consulting Services, and Deborah Blaxell of Epiq Systems www.epiqsystems.co.uk
Today’s working environment is increasingly dominated by the use of mobile and social media, raising important implications for corporate data management. Mobile media is firmly integrated into our everyday activities, enabling convergence between our working lives and personal social media. The rise of enterprise social networking sites such as Jive, SharePoint and Yammer has contributed to the growth of corporate data volumes by for 40% annually as organisations move an increasing number of tasks and content over to these collaborative platforms.
When a company finds itself subject to litigation or a regulatory investigation, it will need to search the entirety of its data sources for potentially relevant documents and data, including data held in enterprise social networking sites. In these circumstances, forward planning and process driven eDisclosure expertise are essential in order to ensure effective response.
Know your obligations
The broad definition of “document” in the Civil Procedure Rules continues to expand as modern means of communication evolve and new tools gain popularity. In litigation and regulatory investigations, the importance of this information is undeniable. Indeed, the judiciary recognise that:
“E-mails, texts, Twitter postings and the like are often the most revealing and reliable contemporaneous evidence of what someone said or thought at a particular time…. Memories are notoriously false and self-serving for any fact-finding judge.”
The rise of social networking in the workplace is said to be the third largest concern to a range of IT and eDisclosure professionals, suggesting that companies are yet to comprehensively understand and meet this challenge. Companies must take proactive action to ensure that they can properly store and extract data from these evolving data sources.
It is important to understand what kind of data is likely to be produced and stored by new social and mobile media. Companies should continuously investigate the extent of possible new sources of electronically stored information (ESI) in light of new communication practices. This will involve the development and maintenance of a data map to record all existing data types, technical infrastructure and storage solutions. Professional networking sites, workplace communications platforms such as Yammer and Chatter, Twitter and other technologies, produce huge amounts of corporate information, and companies will need to manage the retention times and deletion of content held on these social networks. If a company’s data map is not regularly updated, it is likely that it may not include many newly introduced media types and relevant information may be missed.
Companies face serious consequences if they do not maintain an accurate data map governing all admissible data, be it email attachments or communication records from workplace social media such as Yammer and Chatter.
The current attitude can be summed up by the comments of one UK judge who wrote that “one expects [the party, a large corporation,] to have an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its electronically-stored information…failure to disclose such critical information to assist the court is surprising and to be deplored.” In this case, the company in question was penalised.
The implications of not including new technologies in a thorough and regularly updated data map can be far-reaching. In a recent case in the US, a company whose failure to produce emails and email attachments was deemed “negligent” by a judge was also found to be acting “contrary to its legal obligation”. It was concluded that the company had “spoiled evidence”, and the jury awarded damages of $1.5 billion. This award was later overturned, but on grounds unrelated to eDiscovery failures, and only after considerable negative publicity and analysis of the case.
Social media use is exploding, and communication practices are changing rapidly. In turn, the data landscape is continually shifting, meaning that mapping this landscape cannot be a one-off exercise. The growing popularity of enterprise social networks and the resulting increase in data serves to highlight the importance of a continual data management strategy. The consequences of neglecting this monitoring process can be costly both financially and in terms of reputation, and leading businesses are recognising the benefit of partnering with experts to adopt a pro-active, continual approach to information governance.
 PWC, The E-Disclosure report, http://pwc.blogs.com/files/e-disclosure-report.pdf, p. 2
 SCL, http://www.scl.org/site.aspx?i=ed23697#fb_5, 6th December, 2011
 PWC, The E-Disclosure report, http://pwc.blogs.com/files/e-disclosure-report.pdf,
 New Law Journal, http://www.newlawjournal.co.uk/nlj/content/e-disclosure-2014-beyond 6th January 2014.
 Yammer, Terms and Conditions, https://about.yammer.com/terms/, 2014
 Earles v Barclays Bank Plc  EWHC 2500 (Mercantile), http://www.shlegal.com/Asp/uploadedFiles/File/Newsletters/2010_newsletters/04_10/9989_C_LE_Fin_Lit.pdf p. 8
 Coleman Holdings. Vs .Morgan Stanley and CO. 
http://emerginglitigation.shb.com/Portals/f81bfc4f-cc59-46fe-9ed5-7795e6eea5b5/MorganStanley_Mar1.pdf p. 11