Social eDiscovery is alive and well

Today’s post comes from Norv Leong, Director of Product Marketing at Actiance.

Ahh, another LegalTech in the history books.  As usual, there was an interesting mix of suits, vendors, and swag-hunters trolling the floors of the Hilton.  One difference from last year was the very noticeable feeling that in-house counsel, law firms, and compliance officers alike – across all industries – acknowledging (sometimes reluctantly) that they have to include social media and social-ish communications (think IMs, collaboration, texts, etc.) in their legal hold and eDiscovery strategies.

For instance, over the last twelve months, the body of case law involving social media eDiscovery has mushroomed exponentially.  Everywhere you turn you see a wide variety of cases – personal injury, harassment, copyright infringement, wrongful death, even assault and rape – where social media content played a critical role in the outcome.

Upon finding out that Facebook content is admissible evidence.

More and more, judges are allowing the admissibility of instant messages, Facebook posts, and Tweets.  Judging by the conversations we had at our booth, there was also much concern over what to do with data such as Jive, SharePoint, and Chatter.  These tools are like Facebooks for the enterprise, which researchers, engineers, and partners use to exchange information, product plans, and other business records.

Our presentation on the first day, “Social Business is booming:  Are you really prepared for eDiscovery?”, generated heaps of questions, such as “Can you inspect files for sensitive keywords?”, “How do you speed up eDiscovery searches?”, and “Do you capture content in context?”  Given the number of folks that stuck around after my presentation to ask me questions, I felt pretty optimistic that the market was indeed ripe for solutions that could help organizations manage this array of communications channels while slashing their legal costs and reducing their overall risk exposure.

It could be that attorneys are a nervous, worrying lot, but still, it’s no coincidence that patent litigation continues to skyrocket, eDiscovery sanctions are on the rise, and law firms still continue to do big business.  I’m sure I’ll be back next year to see if the same folks I saw this year look a bit grayer up top.

Murder, She Tweeted

Today’s post comes from Norv Leong, Director of Product Marketing at Actiance.

Up to now, social media’s been credited with playing a major hand in the Arab Spring, Weinergate, and (sadly) the rise of Justin Bieber.  We’ve also seen a marked rise in eDiscovery of social media (in civil cases) over the last couple of years.  However, the much-publicized case of Trayvon Martin reveals the application of social media on an entirely new stage:  a murder case.

Social media eDiscovery has almost always reared its head in civil cases, such as employment law issues.  The Martin case is noteworthy because it crosses the chasm onto the criminal side.  In the case, Martin’s attorneys used Twitter initially to bring attention to his death.  In response, the defense lawyer (Mark O’Mara) has been using Twitter and Facebook to counter the prosecution’s claims about the case and his client (Zimmerman).  Additionally, O’Mara is seeking to use Martin’s own Facebook and Twitter pages to bolster Zimmerman’s claim of self-defense.  So, no matter how you look at it, social media is playing a critical role in this murder case.

I want to see your Facebook page.

Interestingly, O’Mara went so far to say that “if every defense attorney is not searching for information on something like this, he will be committing malpractice.”  Wow.  Those are bold words but perhaps not too far off from the truth (who knows, there might even be a case as we speak, making its way through the courts on this very issue).  The point is that the amount of potentially relevant information in social media is massive and that social needs to be taken into consideration in any eDiscovery strategy.

Over the last five years, social has assumed a more visible role in professional settings.  We’ve seen the emergence of regulatory guidelines specifically calling out social (FINRA is an example), and the continued proliferation of software and service providers preaching the goodness of social applications within the workplace.  Of course, all these projects heighten the need for information governance initiatives, as regulatory bodies and courts keep a watchful eye on things to make sure that all affected entities (people and companies) utilize this dynamic medium appropriately.

Social has proven to be an effective communications tool across a variety of fields – from politics to business to pop culture.  It was only a matter of time before its impact was felt in legal circles.  I don’t know how the Martin case will end up, but I do know this:  social’s here to stay and every in-house counsel or law firm should at least consider deploying tools to help them conduct eDiscovery on these emerging communications channels.

Ya never know.  O’Mara’s words might prove to be prophetic after all.

Enterprise Collaboration: Debunking Common Misperceptions

Today’s post comes from Norv Leong, Director of Product Marketing at Actiance.

As social software becomes entrenched on the enterprise scene, now would be a good time to put to rest some common misperceptions and myths that have hung ominously over the space.  The Jive IPO and Microsoft’s acquisition of Yammer speak to the validation and adoption of social software as a viable means to enhance productivity and foster engagement.

So, with that as a backdrop, let’s take a look at some common misperceptions and see how we can’t allay these concerns:

Myth #1:  Social software isn’t subject to regulatory guidelines

Social media and social software may be new forms of communication, but that doesn’t mean they shouldn’t be logged and archived for regulatory compliance purposes.  In the eyes of the regulatory bodies (think SEC, FINRA, FERC, and similar), social software is just another form of electronic communication to be treated no differently than email.  That means that content posted to social software platforms needs to be supervised, logged, and archived to ensure compliance with applicable recordkeeping and monitoring provisions.  Since social software greatly facilitates collaboration, it’s very easy for individuals to bounce ideas (sometimes sensitive or unauthorized information) off each other and exchange files.  That’s why the regulators are interested.

Myth #2:  No one cares about social software eDiscovery

Anyone who’s lived in the US for any length of time will quickly and vigorously nod their head when asked, “Do you think the US is a litigious society?”  That’s like asking the Pope if he’s religious.  People do care about social software eDiscovery, and over the last few years, we’ve begun to see several cases emerge involving social.  Lester v Allied and Crispin v Audigier come to mind as particularly relevant cases involving social media eDiscovery.

In fact, Duke University conducted a comprehensive study and found that the number of eDiscovery cases jumped from 7 in 2003 to 111 in 2009.  The study cited that the #1 reason for courts issuing sanctions was a failure to produce electronic evidence (social software included).  And, like litigation in general, there seems to be no end in sight.

Myth #3:  Corporate governance has nothing to do with social software  

Au contraire.  Social software has everything to do with corporate governance, especially in an era where news travels lightning fast via social channels.  You needn’t look further than the Arab Spring to see the speed and power of social in action.

Good corporate governance entails having the appropriate policies and procedures in place for records retention, information governance, and conflict management.  It’s wide-ranging with the objective of instilling a sense of accountability throughout the company.  And this includes social software communications.  People use social software to brainstorm, debate, and even vent.  Say or write the wrong thing, and all of a sudden, it becomes a corporate governance issue.

Myth #4:  Plain ol’ capture is sufficient

Well, not exactly.  Following on from the discussion above, responding in a timely fashion to discovery requests sounds easy but comes with some challenges.  When you think about the volume of data floating around out there (emails, social software content, Facebook posts, Skype IMs, etc.), you’ll get a headache right quick.  Those headaches are compounded by the manner in which this content is logged and archived.

Many of today’s archiving systems just capture the content without regard to context.  We all know that people like to respond to blogs or other posts on social media.  When you’ve got a couple dozen people chiming in with their thoughts, feedback, even deleted comments, it’s easy to see the importance of capturing conversations in context.  There are just too many regulatory, legal, and corporate governance issues at stake to risk a substantial sanction or fine.

Off my soapbox now…

So there you have it – this author’s version of Mythbusters.  Like with most things social, it’s all quite fluid and dynamic.  What I just wrote today may be old hat tomorrow.  But, given that old-school concepts such as law and compliance still hold valid today, I gotta believe that the myths debunked above has some legs.

What kinds of myths are you seeing in your enterprise?

Of mice, men, and social eDiscovery

Today’s post comes from Norv Leong, Director of Product Marketing at Actiance.

Having just returned from the Carmel Valley eDiscovery Retreat in lovely Monterey, California (author John Steinbeck’s stomping grounds), I walked away with the distinct impression that social media and enterprise collaboration applications were drawing increasingly more attention, both from the courts as well as the other vendors in attendance.

Why is this happening?  Well, there’s growing acceptance that social-type communications are subject to eDiscovery just like other forms of electronic communication (read:  email).  The list of cases involving social media eDiscovery grows longer each month.  All this reflects the growing demand for solutions that can capture social media and collaboration content in a way that preserves the interactive format of sites like Facebook, Twitter, blogs, and their brethren.

Capturing social content is one thing but to do so contextually is another.  The importance of context can’t be emphasized enough when it comes to social media and collaboration platforms.  That’s because their very DNA is predicated on constant interaction, be it feedback, replies, sharing, you name it.  You might have ten individuals responding one on top of the other to a provocative blog entry.  If an archiving system were to capture each of the ten persons’ comments individually without tying them back to the original blog entry, you lose all context.

Now, when you toss litigation into the mix, where expensive legal costs and tight deadlines are the norm, well, you can see how having accurate, contextual capture can save lots of time, money, and headaches.  Moreover, having a system in place that can handle a wide range of communications (e.g., instant messages, social media, collaboration, Skype, BlackBerry, and all the rest) brings efficiencies that would otherwise be absent if an organization chose to deploy multiple systems to capture all these different types of communication channels.

Point solutions are becoming too difficult to manage, too expensive, and prone to compatibility issues.  Having a single platform to manage all your communications channels, given all your security and compliance concerns, can certainly restore calm to an otherwise chaotic world of real-time communications.

That kind of simplicity even John Steinbeck would be proud.

Let’s not forget social media in discovery strategies

Up until very recently, social media eDiscovery was often overlooked (or just plain ignored) by law firms and organizations alike.  That’s changing though.  With an increase in case law emerging on social media issues, it was inevitable that the legal community would start to incorporate social media communications into their discovery strategies.

The recent  sanction of an attorney in Virginia underscored the importance courts now place on proper discovery of social media content.  At the end of the day, social media is just another form of electronic communication, much along the lines of email and instant messaging.  It’s the content that matters, not the communication channel.  In fact, whether it’s for corporate governance, regulatory, or eDiscovery purposes, the identification and collection of social media content is absolutely critical.

I’m excited to present at LegalTech New York this year.  Social is on everyone’s minds.  Case law is growing on the topic.  And technology is keeping pace.  In addition to speaking in New York, I’ll also be hosting a regular webinar on social media eDiscovery.  We’ll be hosting our first Social Media eDiscovery webinar on February 8^th at 11am PT, so we encourage you to sign up and find out what your organization should be doing with respect to social and what tools are available to facilitate the discovery process.

Social’s not going anywhere, so it’s best to be prepared if the courts get involved….

Social media eDiscovery Webinar

It’s a new year, yet the social media train continues along its tracks.  As social becomes further ingrained in our daily lives, both personally and professionally, the legal community is quickly realizing that social media cannot be ignored for eDiscovery.  Increasingly, we’re seeing more lawsuits that are social media-related.  Although it’s a still-evolving area of law, the body of case law is steadily growing.

Actiance is excited to announce a new webinar series focused on social media eDiscovery.  You’ll learn about eDiscovery basics and what’s driving corporations and law firms alike to think seriously about their social media strategies.  We’ll discuss some of the key drivers for social media discovery and the technology solutions available to capture this type of content.

Our very own, Norv Leong, will be delivering the webinar.  He’s a licensed member of the California Bar and is also the author of the Actiance white paper, “Social Media and Litigation:  Outlining eDiscovery Issues.”  He’ll bring to bear his twelve years of experience in the technology and legal sectors to educate you on the key issues of social media eDiscovery and to share his insights on an effective social discovery strategy.

We believe that social cannot be overlooked for any organization’s overall discovery strategy, so please join us on February 8^th at 11am PT to find out why. Register at http://info.actiance.com/eDiscovery-webinar-2

Actiance and IBM: Enabling Social Business

Most of the Actiance team is off at Lotusphere this week – and while I expect a few of them will be sneaking away from the show floor early to visit the “Magic Kingdom,” I’ve been left to captain the ‘blogging ship’ as it were.  So, as a nod to the Actiance team at Lotusphere and to longtime Actiance partner, IBM, I wanted to write about some great news for IBM Connections users and Actiance customers.

At the event, Actiance is showcasing the result of a partnership with IBM – Vantage for IBM Connections.

When most people think about what the term “social business” means, they typically don’t think regulatory compliance and eDiscovery.  But, businesses moving into social face increased regulatory compliance requirements.  Add in the requirement that social content needs to be discoverable and suddenly the internal IT team is in over its head trying to make social business work.

That’s why Actiance has partnered with IBM to make it easier for IBM customers to adopt social collaboration tools.  IBM customers can now access Vantage Compliance support for IBM Connections and IBM Sametime through the IBM Passport Advantage (PPA).

Vantage for IBM Connections provides a centralized governance, management, and security policy framework to ensure compliant, discoverable social content (it also allows granular policies to be defined between end users, groups of employees, and even non-employees).

I know the team is excited to showcase our new Vantage for IBM Connections compliance module (available exclusively through IBM) at Lotusphere this year.  We’ve already seen a tremendous amount of interest in the module from customers looking to better enforce corporate use policies and enable collaboration.

If you’re attending Lotusphere this year, please stop by Actiance booth #521 – we’d love to hear about what your organization is doing to enable social business.  If you have questions about Vantage for IBM Connections – let us know in the comments section below – we always enjoy talking social business!

“It’s compliance Jim, but not as we know it”

From Robin Smith, Technical Manager, EMEA, FaceTime Communications

I recently read an article posted on The Register, based out of the UK, about the great advances the current version of Microsoft’s Unified Communications platform (OCS) has made, when compared with previous incarnations. I’m in full agreement and look forward to the next release, currently called CS14, details can be found here. Given that a large number of our customers have either industry or legal compliance requirements they must comply with, I did feel one of the final comments needed a little more qualification than space in the article allowed for:

“…if compliance is a concern, you have IM archiving”

The moment I read that, I was catapulted back to the late 1980s and ever since haven’t been able to get the incredibly annoying “Star Trekkin” by “The Firm” out of my head. Click here or search YouTube for “The Firm – Star Trekking” if you have no idea what I’m talking about – your ears won’t thank you. Why? Well, compliance is in the eye of the person with a fine and possible jail sentence hanging over their head and as Spock’s line in the song goes:

 “it’s life Jim, but not as we know it.”

There are in fact a few different ways you can store OCS IMs both natively with Microsoft products and using third-party solutions. But, as those who write on bits of paper or print things out so they don’t forget or lose them and then can’t find the bit of paper when they actually need it can attest to, just because you’ve archived something doesn’t mean:

• you can ever find it again, even though you know it’s in that pile somewhere
  
• it will be complete, maybe the dog ate half of it
  
• that it will come back looking the same, maybe you spilled coffee on it or you printed out several pages and they’ve been mixed up so the order is wrong
  
• that someone else can look through the pile and find the piece of paper
  
• different things of difference genres or sizes will fit or stay in the pile properly
  

To achieve all of the above, you need special controls around how you capture, store, search and recover data.

You need to be able to show that what has been recovered is the same as what was originally stored and that it is a true representation of the original data. You should also make sure that in the case of a multi-party chat where someone wasn’t part of the whole conversation that the view of their data is different to that of the other participants’. Let alone the ease of use issues around eDiscovery; making it possible for someone (often non-technical) to search the archive and recover what they need without having to become an expert in SQL scripting. So if we can achieve that, are we compliant? Maybe, maybe not.

What about usage policy? Can my Traders and Research teams talk to each other? Do I want Billy in the call centre using my OCS system to ask all the eligible young ladies in the department out on dates?

What about content security? If I’m allowing file transfers, shouldn’t they be stored along with the IM conversation transcripts? Shouldn’t you be virus checking file transfers, making sure that staff aren’t using inappropriate language over IM, especially with business partners through my OCS edge server.

My point is that for some people compliance isn’t just about storing what happened, it’s about making sure certain things can’t happen in the first place and being able to retrieve it in a fashion that meets regulatory requirements.

“There’s Klingons on the starboard bow”


The list goes on…and we haven’t even thought about what else is happening on the corporate network. What about Skype, Yahoo, GoogleTalk , Windows Live Messenger and Blackberry PIN / SMS to name but a few?

Of course the OCS Archive server wasn’t designed to be an enterprise platform covering so many different flavours of IM – but it is rare to see just one flavour of Instant Messaging on a corporate network. From a management perspective alone it makes sense to have a consistent policy around all authorised channels and block everything else.

…and finally, there’s the whole issue surrounding Social Networking. “We block it”, I hear you say. Well, that’s all well and good, but last time someone told me that I searched Twitter and found no less than 5 accounts tweeting on behalf of the company. I then searched Facebook and found a network, groups and employees.

Couple this with the huge pressure many companies are under to enable sites like Facebook, LinkedIn & Twitter for legitimate business purposes along with the reach it gives sales and marketing for the company’s brand and you can see why there’s such a lot of noise in the corporate space surrounding Social Networking.

Ask FINRA (Financial Industry Regulatory Authority) or the UK’s FSA (Financial Services Authority), both have issued specific guidelines regarding social networking posts, saying that they need to be treated as forms of electronic messaging. This means that they effectively need to be subject to the same controls mentioned above.

So. Yes, you can indeed store your OCS IM conversations in the OCS Archive server. Does it give you IM compliance? Not as we know it, Captain.

Robin J Smith is FaceTime’s Technical Manager for EMEA, an occasional Star Trek viewer and is currently looking for suggestions on how to get the above song out of his head. You can follow him on Facebook, LinkedIn or Twitter.