E-Discovery of Social Media Continues to Challenge Organizations

Meeting the challenge of responding to e-discovery continues to worry business organizations, according to a recently released study from the Deloitte Forensic Center think tank, which found that more than six out of 10 respondents said their companies "were concerned" about records requests from social media.

Since governments often must deal with the private sector in litigation cases, it might mean the public sector will find this issue increasingly troublesome in the future. And it may also suggest, as the public and private sectors tend to mirror each other, that governments should take additional steps to ensure e-discovery for mediums like Twitter and Facebook.

"I think one of the more surprising points in this study is that despite it being fairly well known that the lack of communication and coordination between IT and legal is really at the crux of the [e-discovery] issue and has been for many years," said Jeff Seymour, leader of the northeast analytic and forensic technology practice for Deloitte Financial Advisory Services, "that the level of communication and awareness is still not what we would hope."

Additional results from the center's survey of 337 IT, legal, risk and compliance professionals in the U.S. include:

• During the next three years, 49 percent of respondents expect their companies' IT department to increase e-discovery efforts;

• 44 percent expect e-discovery challenges to increase; and

• 39 percent expect to devote more resources to e-discovery.

On a gloomier note, "of respondents with an opinion," 61 percent expect their companies to be only somewhat effective or not effective at all in dealing with e-discovery challenges three years from now.

• One-quarter of respondents indicated that their companies are unprepared to handle e-discovery requests pertaining to business-related use of social media, and an additional 36 percent indicated their companies are only somewhat prepared.

• Beyond social media platforms, only 9 percent of companies are well prepared to capture electronically stored information on third-party platforms, such as information stored in the cloud or used in software-as-a-service applications.

Seymour said he expected more of the survey respondents to say that their organizations had dedicated resources to the problem, but that wasn't the case.

"One concrete recommendation that we make to clients is that some kind of cross-functional team be created and needs to be funded and supported appropriately," he said. "One common term for that is a discovery response team, a DRT. That's one way to help both set policy and direction, and then once that's set to actually execute on that."

Such a team, for example, could decide what technology solutions to dedicate to e-discovery of social media so that the appropriate data is saved and archived across the enterprise.

A number of complex factors are driving organizations' unpreparedness, and in particular on social media, Seymour said. One is that as data volumes increase, tracking that volume of data is increasingly challenging. Two, organizations are concerned about data security and privacy, and it's complicated further in "cross-border" instances. Three, the advent and rise of social media means that many organizations (and governments) have data stored by a range of third parties. There also are several other issues.

"If you take those issues, some combination or all of them together is what creates a sense that organizations are not going to get out in front of this quickly," Seymour said.