Fulbright & Jaworski’s 2011 Litigation Trend survey provides a number of interesting tidbits on all things litigation, including some insight into social media practices by employers. There were a couple of items raised in the survey that have serious implications for employers:
• One-fifth of all respondents reported in a previous year their companies had to preserve or collect data from an employee’s personal social media account;
• 19% of all respondents produced, as part of discovery, electronic information stored in a social media site in the past 12 months;
• 90% of U.S. respondents reported that they allowed their employees to conduct business on mobile devices; and
• Only 30% of respondents had to preserve or collect data for them from mobile devices for litigation or investigation.
Archiving social media communications by employees is a big deal. In the context of broker dealers, FINRA requires that some social media communications be archived. Obviously, with FINRA, there is a large regulatory body governing broker dealers. But in the context of other businesses there is usually not that type of regulatory oversight. That said, should employers be protecting themselves by archiving this type of information? That will depend on the industry and costs involved.
