Sunday, May 17, 2009

Twitter as Posing A Threat for Business?

Twitter and e-Discovery
The reason this is not newsworthy but is worth a blog post and why the Bryan Cave post is a bit behind the times as well, is that simply put, ‘everything that exists is discoverable’ at least pretty much. This would apply to any tweets that had been stored by a company or a user or anyone else. Attorney client communications, data deemed to be inaccessible for technical reasons and a few other kinds of electronic data may be protected, by a specific legal principles or by time and cost constraints. Information deemed to be privileged may also be withheld, but note that you can only do that AFTER there are lawyers involved, meaning you are already in the soup. At that point, you are paying a legal professional to actually read stuff and determine its status in a given case. You’ll already be writing checks.

Twitter and e-Discovery
So you do need a Twitter policy, but that policy mostly consists of common sense. And of course, everyone is likely to act reasonably most of the time. But. The piece goes on to suggest that ‘data needs to be preserved’, implying that we should all be saving Tweets, I guess. That’s where the confusion comes in. The juxtaposition of these thoughts might lead you to believe that it is standard legal advice is to ‘save everything’. As it happens, it often is standard legal advice to save everything. There are very few instances, however, in which you are required to ‘save everything’. If you are covered by the SEC rules that all broker dealer communications be saved for a period of three years, you’d better be doing something about your broker’s tweets. In a way, you’re lucky if you are covered by that rule. Most of us wish the rules were as clear for us. As one SEC official allegedly put it: when we said everything, we meant everything. If someone throws a brick through your window, with a note tied to it, you need to save the note, the brick and the string. But alas, that is not most of us, and we must decide, ourselves, what happens to the note, the brick and the string.

A well thought out, consistent policy, one that is enforced, for all electronic communications, is what you need. And you do need to seek legal advice, as well as best practice advice. Gartner does not give the former, but we do give the latter. We would always recommend that any policy be vetted by legal counsel or outside counsel. However, a policy you craft yourselves, with business leaders and house counsel, using best practice advice from Gartner, the Sedona Group, an ABA publication or a myriad of other sources is going to be a great deal cheaper than some other alternatives.