For The Defense, February 2012 - DRI Today

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Electronic Discovery Blackberry. They run complete operating system software, and most of them have the ability to capture images and video. According to a 2010 study by ComScore, out of 234 million total subscribers, over 45.5 million people in the United States owned smart phones. Press Release, Michigan Educations Savings Program Launches New Mobile Phone Application, Pace & The most popular content rises to the top, instantly plugging management into the virtual water cooler. Partners (Jan. 6, 2011), http://www.misaves. com/documents/pr_011111.pdf. Tablet computers are also becoming increasingly popular tools in workplaces, the most popular of which is the iPad, which is light and portable with an attractive interface. iPads, which employees often use for a wide variety of business and personal uses, are able to wirelessly connect to networks, and many will run on networks provided and maintained by an employee’s company. Benefiting from New Technology in the Workplace Technologies benefit companies in many ways: they increase collaboration, efficiency and productivity; they play to the strengths that first-time entrants bring to the workplace; and they expand business promotion. 26 ■ For The Defense ■ February 2012 Collaboration, Efficiency, and Productivity The corporate environment of the twentieth century was characterized by a vertical, top-down approach to communication and interaction. The twenty-first century corporate environment flattens this structure and has allowed coordination across geographically dispersed entities connected through electronic networks: “Work product, data, and information can now be transmitted rapidly and inexpensively, eliminating the need for hierarchical coordination structures. Individuals who work for interconnected and technologically advanced organizations are adapting and constantly learning.” Paul Asunda, Productivity, Social Networks and Net Communities in the Workplace, Techniques, May 1, 2010. Allowing and even training employees to interact in this relatively new world, microblogging, social networking, and cloud computing offer a number of advantages such as improved efficiency. Jive Software recently conducted a survey of 500 people in more than 300 of its customers that use internal social networks. Those businesses spanned high-tech, financial services, communications, health care, and other industries. According to the study, social networking tools increased the number of ideas generated and captured, raised employee satisfaction levels, and maximized project collaboration and productivity. Correspondingly, the amount of e-mail and time that employees expended finding answers significantly diminished. Clint Boulton, Social Software Boosts Employee, Customer Engagement: Jive, eWeek.com (Feb. 3, 2011), http://www.eweek.com/c/a/Messaging- and- Collaboration/Social- Software- Boosts- Employee- Customer- Enagement- Jive- 178705/. Skill Enhancement With Web 2.0 technologies present in virtually every industry and the digital age in full swing, the disparities between employees who are digital immigrants and those who are digital natives have become apparent. Digital immigrants learned their trades before computers took hold in the modern workplace, and they have had to adapt to remain current and effective on the job. Generally these employees typically are less inclined to embrace the latest technology fad until it had become a well- established tool. Digital natives, on the other hand, have made technology a way of life, and they are far more likely to stay abreast of emerging technological trends geared toward speed and efficiency than digital immigrants. Virtually anyone entering the workforce today for the first time is a digital native, and digital natives will soon outnumber the rest. In many industries, they already do. If companies hope to maximize employee satisfaction and harness productivity and efficiencies, it makes sense to incorporate the tools with which the majority of their employees are most comfortable into their business practices. Business Promotion New and emerging technologies can boost marketing efforts, increasing customer retention, brand awareness, customer feedback, and new customer sales, and they can decrease support call volume. Allowing employees to use public social networking tools, web-based technologies, and microblogging in the normal course of business offers tremendous marketing opportunities. Blogs, for example, can increase online visibility, enhance professional credibility, provide useful information to potential clients and attract new visitors to a company’s website; Twitter provides a personal, one-to-one connection through tweets from a “live” person; Facebook promotes a casual forum for interaction; and LinkedIn encourages exchanging credentials and nurturing professional relationships in a formal setting. Risks of Emerging Technology in the Workplace Although incorporating emerging technologies into a company’s business model arguably has enormous benefits, doing so also poses significant risks. Impact on and Security of Company Resources On the management front, emerging technology can affect resources, and ultimately revenue. While the number of applications found on corporate networks has remained relatively stable over the past year, the bandwidth that new applications consume has more than doubled and is expected to grow even more in the very near future. Additionally, because of the trust-based nature of public social networks, employees can unintentionally and unknowingly introduce malware and viruses into computer systems. As Enterprise 2.0 information sources proliferate, the need for a single search interface will become increasingly more important. As Martin Butler pointed out in The Business Value of Enterprise Search: A Review of Cost Effective Solutions for Managers, while search functions have
often been treated as afterthoughts, they deserve at least as much attention as information creation processes such as data entry and document creation and can create value from an organization’s information resources. In expanding the ability of employees to cull through a company’s data, awareness of the risks presented with enterprise search is critical, and an employee’s ability to search should ideally be managed in a way that prevents him or her from accessing sensitive information. Before introducing Enterprise 2.0, certain data may have existed on a company’s network, and while it may have been technically accessible by anyone on the network, the inability to search and cull that data meant that the information was effectively protected. As Enterprise 2.0 makes network data easy to locate and access, companies should consider enhancing security on individual sites and even on individual documents. Regarding mobile devices, employers should consider the risks that they involve before deploying the newest devices among their workforces or sanctioning their use. iPads, for example, lack many of the features that make devices such as BlackBerries easier to secure and control, and it is currently more difficult to limit the installation of applications or wireless connectivity of iPads than with other devices. The appeal and functionality of the iPad interface, coupled with the lack of corporate enterprise control over company- issued or personally acquired iPads, perfectly exemplifies the risks and benefits that companies will have to consider when implementing new technologies. On the personnel front, the amount of time that employees waste on social networking sites can also have a significant financial impact on a business’ bottom line. One study published last year by Morse, an IT company, estimated that personal use of social networks during the working day cost the British economy almost £1.4 billion, $2.3 billion, a year in lost productivity. Another study by Nucleus Research, an American firm, concluded that if companies banned employees from using Facebook while at work, their productivity would improve by 1.5 percent. Executive Briefing, The Economist, Feb. 2, 2010, available at Westlaw 2/2/10 EXECUTIVBRFG 6. The Economist, however, has argued that these studies may overstate potential productivity loss as the studies assume that employees would actually work rather than find some other way to pass the time that they have to spare. Id. Harmful Use of Emerging Technologies When an employee has identified himself or herself through social networking as an employee of a company, in a sense he or she speaks on behalf of the company, which can potentially have harmful consequences for the company. For example, an employee can commit copyright infringement if he or she posts content without the content owner’s permission. An employee can defame, libel or slander if the employee makes a false claim about a person or competitor’s product. An employee can disclose propriety or confidential information by divulging highly sensitive information. When an employee speaks on company issues without authority, he or she could harm the company. Or an employee could create an employment issue by posting something to Facebook, Twitter or Yammer that he or she would never normally put formally in writing in either an e-mail or a letter. Relevance and Discoverability Due to the increasing use of electronic media, “the universe of discoverable material has expanded exponentially,” and discovery costs have skyrocketed. See Zubulake v. U.B.S. Warburg, L.L.C. (Zubulake I), 217 F.R.D. 309, 311 (S.D.N.Y. 2003). Discovery is no longer “just about uncovering the truth, but also about how much of the truth the parties can afford to disinter.” Id. The duties to preserve and produce documents relevant to litigation are not new. However, electronic media use has broadened the scope of that duty greatly. Because the amount of information has increased exponentially, the difficulty in identifying, preserving, and producing information that is relevant to a lawsuit is greater than it has ever been. Courts have consistently held that information stored in electronic format is discoverable under the Federal Rules of Civil Procedure as long as it is within the scope defined by the rules. Federal Rule of Civil Procedure 26 permits parties to “obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Fed. R. Civ. P. 26(b)(1). The 1970 Advisory Committee Notes regarding Federal Rule of Civil Procedure 34(a) specifically recognizes that discovery procedures under the federal rules apply to electronic data and information. Fed. R. Civ. P. 34(a) advisory committee’s notes, (1970). Similarly, the 1993 Advisory Committee Notes to Federal Rule of Civil Procedure 26(a)(1) (B) indicate that parties should disclose the “nature and location” of “computerized data and other electronically recorded information.” Fed. R. Civ. P. 26(a)(1)(B) advisory committee’s notes (1993). Discovery requests targeting relevant electronic information the privileges do not protect and that do not run afoul of Federal Rule of Civil Procedure 26 are appropriate under the federal rules. For example, courts have routinely held that electronic information is discoverable in forms such as computer magnetic tapes, disks, computer files, e-mails, backup systems, and hard For The Defense ■ February 2012 ■ 27
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