For The Defense, February 2012 - DRI Today

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Electronic Discovery Company-Enabled Technologies, Social Networking Platforms, and Mobile Devices By John D. Martin and Heyward D. Bonyata Managing Electronic Discovery and Compliance Risks Increased efficiency, greater revenue, enhanced security, and legal defensibility are the rewards of a proactive data management strategy. Cloud computing, SharePoint, social networking websites, e-mail, text messages, and Twitter are just a few of the ways that employees collaborate, create, store, and instantly transmit ideas, images, and information. In today’s economic climate where market conditions and stiff competition demand quick responses, high productivity, and internal efficiencies, technology offers enormous value; however, it also carries with it significant business and legal risks. To implement and respond to rapidly evolving business technologies effectively, it is critical for counsel to have a good grasp of the methods and means by which employees are communicating, as well as to understand the legal risk factors and mitigation strategies associated with those methods and means. Communication Technology To mitigate the legal risks associated with collaborative technologies counsel need to understand cloud computing, Enterprise 2.0, and basic social networking platforms. Cloud Computing Some define cloud computing narrowly as an updated version of utility computing—or virtual servers available over the Internet—while others argue that anything hosted outside a firewall is “in the cloud,” including conventional outsourcing. The National Institute of Standards and Technology (NIST) defines cloud computing as “a model for enabling convenient, on- demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.” Peter Mell & Tim Grance, The NIST Definition of Cloud Computing: Recommendations of the National Institute of Standards and Technology 3, NIST Special Publication 800-145, (Nat’l Inst. of Standards & Technology Sept. 2011), http://csrc. nist.gov/ publications/nistpubs/800-145/SP800- 145.pdf. Cloud computing makes it easier to communicate and work together on documents, calendars, and other collaborative projects. Employees of companies who use cloud computing can access information and run software applications wher- 24 ■ For The Defense ■ February 2012 ■ John D. Martin and Heyward D. Bonyata are attorneys at Nelson Mullins Riley & Scarborough, LLP based in Columbia, South Carolina. Mr. Martin is the leader of the firm’s Encompass E-Discovery and Document Review Solutions division, and Ms. Bonyata serves as the Encompass Operations Manager. Both authors are members of DRI’s Electronic Discovery Committee, for which Mr. Martin also serves as publications chair.
ever they may be, whenever they need it, and from virtually any device connected to the Internet. According to a January 2011 report by Cisco, 88 percent of IT respondents predicted that they would store some percentage of their companies’ data and applications in private or public clouds within the next three years. Cisco Connected World Report, Software World, Jan. 2011, available at Westlaw 1/1/11 SOFT- WORLD 5. For companies that need to strictly control their IT infrastructure costs, cloud computing can be a tremendous asset, allowing businesses to pay only for the computing services that they need. Enterprise 2.0 One of the most dynamic concepts impacting large businesses is Enterprise 2.0, which is the use of technologies to enable or streamline business processes while enhancing collaboration—connecting people through the use of social- networking tools. Enterprise 2.0 helps employees, customers, and suppliers collaborate, share, and organize information. In a study by AIIM Industry Watch Collaboration and Enterprise 2.0, 71 percent of people agreed that it was easier to locate “knowledge” on the web than on their own company’s internal systems. Doug Miles, Enterprise 2.0: Work-Meets-Play or the Future of Business, AIIM (Sept./Oct. 2009). Companies operating within an Enterprise 2.0 framework are seeking to reverse this trend with integrated internal networks. Integrated internal social networks typically offer a number of features: • Users have a rich social profile revealing their expertise, experience, knowledge, and results. • Employees have the ability to send and receive messages using microblogging, e-mails, and text messages. • The software may be integrated with SharePoint or devices such as smart phones and iPads. • Employees from many levels of an organization can submit ideas, vet them, refine them, and vote on them. • Internal communication improves, an organization can dissipate rumors, and it can address concerns directly where they’re posted. • The most popular content rises to the top, instantly plugging management into the virtual water cooler. • Productivity increases and turnover decreases creating a highly attractive environment for new talent. • New employees access institutional knowledge instantly driving learning curves down and results up. SharePoint, which is now prevalent in the business community, is a family of Microsoft document management products that facilitates collaboration, file sharing, and web publishing. Social networking platforms enable employees to engage in collaborative communication through online communities, discussions, wikis, and blogs, among other methods. Jive Software, for example, is a company that has developed a suite of corporate social networking tools tailored for various activities such as employee collaboration or brainstorming. Another popular provider of internal social networks is Yammer, which originally began as an internal version of Twitter, allowing employees to broadcast messages within a company or within certain company groups. Although Yammer offers an internal microblogging service, it is quickly becoming a comprehensive enterprise social network. Social Networking Platforms In addition to collaboration technologies used within companies, employees regularly use a number of popular public social networking platforms including, among others, Facebook, Twitter, LinkedIn, and MySpace. According to a July 2009 Morgan Stanley report, social networking users surpassed e-mail users worldwide. Morgan Stanley & Co. Inc., The Mobile Internet Report (Dec. 15, 2009), available at http://www.morganstanley.com/institutional/ techresearch/mobile_internet_report122009.html (last visited Dec. 29, 2011). Given the popularity of modern social networking platforms, many company employees will use one or more of these platforms on a regular or even daily basis. As of January 2011, Facebook had 600 million active monthly users, all of whom can create profiles with photos, lists of personal interests, contact information, and other personal information. Users communicate with friends and other users through private or public messages and a chat feature. They can also create and join special interest groups. Users often identify themselves as employees of a particular company on Facebook, and while an individual can set his or her Facebook page settings so that the page remains private, in practice anyone who is listed as a “friend” of that person can access it. Twitter is a microblogging service that allows users to send and read messages called tweets. It is estimated that Twitter has 190 million users generating 65 million tweets per day. Tweets are publicly visible by default, although if a person writing a tweet takes a specific action, only that person’s followers can view his or her tweets. As with Facebook, Twitter users often identify themselves as employees of particular companies. Blogs are among the most public of all Web 2.0 communications. Outside of blogs that exist on internal company networks, most blogs are open to anyone with an Internet connection. It is common for employees to blog about their work and the companies that they work for, and a number of studies have indicated that this phenomenon can significantly impact company brand recognition. Instant messaging and text messages increasingly are also becoming routine. In 2008, for example, the total global user base for text messaging passed the three billion mark. Today 76 percent of all mobile phone subscribers worldwide use text messaging, also known as “SMS,” or “BBM” for instant communications sent by Blackberry’s service. Tomi T. Ahonen & Alan Moore, 3 Billion Use SMS, What Does That Mean, Communities Dominate Brands weblog (Mar. 6, 2009), http://communitiesdominate.blogs.com/brands/2009/03/3- billionuse- sms- what- does- that- mean.html. Devices Used by Employees to Communicate Information There are compelling business reasons for companies to encourage employees to use company- issued mobile- devices and, for decades, those resources have played important roles in workplaces. In recent years, there has been a considerable proliferation of the various types of devices available for use, allowing companies to enjoy even greater connectivity and business productivity than ever before. The business community widely uses smart phones such as iPhone, Droid, or For The Defense ■ February 2012 ■ 25
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