More Social Media; More Problems

Norton Rose Fulbright recently issued the results from its annual Litigation Trends Survey.[1] As expected, the rise in social media use has led to an increased workload for in-house legal departments. Out of the 400 senior corporate counsel that answered the survey, 20% indicated that their company, in response to either a dispute or investigation, had to collect data from an employee’s social media account. This was a slight increase from the previous year (19%) and the year before that (16%).

Practical Pointers:

• This is a useful reminder that employers must be mindful of where employees maintain business-related data. In general, employers should know where relevant data may be stored, who has access to that data, and whether such data is intermingled with personal data (such as personal social media accounts). If an employer knows that its employee is using social media for business purposes, there should be a contingency plan in place to access that data (even if the employee is no longer with the company), review it, and produce relevant information in response to either an investigation or lawsuit. This contingency plan, however, must take into account and comply with recently enacted laws in many states that prohibit employers from requesting or requiring employees to provide access to their personal social media accounts.