A finding by the U.S. District Court for the Southern District of Indiana on May 11 2010 has cemented the discoverable nature of Social Networking Sites ESI, allowing the discovery of Facebook and MySpace profiles, postings, photographs and messages.

In Equal Employment Opportunity Commission v. Simply Storage Management LLC, two plaintiffs claiming sexual harassment were required to produce information from their social networking site profiles.

The court noted that such information was relevant to their claims and therefore discoverable, deeming relevant any material that “reveal, refer or relate to any emotion, feeling or mental state.”

Whilst the finding in EEOC v Simply Storage Management was beneficial to the defendant, Social Networking Sites pose a minefield of unwitting potential risks for businesses; intellectual property theft, insider trading information, wrongful termination, harassment and discrimination to name only a few.

Yet, despite this risk, genuine business usage of these sites has increased dramatically, with businesses capitalising on the SNS phenomenon as an effective marketing medium. Web 2.0 technologies extend past Social Networking Sites and include blogs, wikis and collaboration software like SharePoint and Google Docs and video-sharing sites such as YouTube.

These dynamic technologies challenge a company’s ability to not only manage but monitor their communication. It is important to recognise that posts created for corporate purposes will highly likely be considered a record for purposes of retention requirements and businesses will need to consider how they will be able to effectively search, audit and archive this slippery ESI.

Companies are well advised to ensure they have a policy in place banning the use of all social networking sites for personal use at work and use filters to block access to unauthorised staff, this will assist in drawing the line between corporate and personal records.

Ultimately, employees should be educated to understand that they are creating records that may be damaging and discoverable.