1. Key Social Media Considerations It is no longer a question of whether a social media policy is needed, it is more a matter of what that policy proscribes and how the risks associated with social media are to be managed. Do you have presently have a document retention and governance policy that includes social media? Consider that they should be part of the same document. Do you have a plan for preservation and the collection of social media from a technical perspective? Basic key considerations for constructing that policy are: –Short and long term data storage strategies- what is being retained that does not need to be? –Audit processes- Is there a system to monitor social media, internal and external facing? –Enforcement Protocols- Is the appropriate access being granted or denied to websites, users and certain functionality? –Litigation Response Plans- When the duty to preserve kicks in is there a plan to deploy litigation hold “in place” and to collect the data? How will it be reviewed? –Employee Education and Training Programs- Are employees aware of the guidelines surrounding social media use and have they been properly trained? 1

2. Important Social Media Cases Crispin v. Christian Audigier, Inc. United States District Court, C.D. California. May 26, 2010 717 F.Supp.2d 965 E.E.O.C. v. Simply Storage Management, LLC United States District Court, S.D. Indiana, Indianapolis Division. May 11, 2010 270 F.R.D. 430110 Fair Empl.Prac.Cas. (BNA) 49 Ledbetter v. Wal-Mart Stores, Inc. United States District Court, D. Colorado. April 21, 2009 2

3. Discovering non-party hosted ESI FRCP require that materials be produced in litigation that are in the party’s, “possession, custody or control.” Control” references the legal power a producing party has over ESI held by a non- party. Under Rule 45, non-parties can be served with a subpoena, which has the authority of a court order- litigation hold is necessary at this point and most likely preservation was required prior if there was “reasonable anticipation of litigation.” 2 basic scenarios: 1)ESI belongs to or directly relates to the producing party but is held by a non-party or 2)ESI belongs and relates solely to the non-party, but is relevant to the matter, referred to as non-party information. Very common in the social media data collection for “consent” to be the method upon which the information is accessed. If no consent, then a motion to compel may be in order 3

4. Emerging Trends in Social Media Understand the impact of the social media technology on the organization for each site in technical terms Consider the full capability of the site and account for the risk in policies by evaluating the potential legal exposure associated with its use Training, Education and Interviewing of employees to ensure they understand policies and to keep in touch with how they are or should be using social media at work Testing to make sure policies are being enforced, nothing worse than having a policy and not following it, must keep it current More social media cases will occur outside of simply HR/Employment realm as Corporations themselves adopt social media personas 4

5. Helpful Resources This site describes the procedures and requirements to subpoena information from various social media services. https://www.eff.org/fn/directory/9210/419 https://www.eff.org/fn/directory/9210/419 Terrific guidelines and advisory writing on social media and its implications. http://www.thesedonaconference.org/conferences/tsci/20110 317 http://www.thesedonaconference.org/conferences/tsci/20110 317 Interesting proposed legislation in California. http://bit.ly/ltILNihttp://bit.ly/ltILNi Social Media Guideline Example. 5

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