An interesting article recently was published in the May 2009 issue of the New York State Bar Journal, on issues relate to the use of Twitter both by lawyers and by individuals and employees who eventually become embroiled in litigation. He touches on some of the potential e-discovery implications of Twitter messages.
As the article explains, Twitter applications typically are not offered by businesses for their employees' use; rather, employees use either their own cell phones or their employer-provided cell phones to send messages outside the parameters of a company's routine IT data retention protocol. As such, the messages likely are nor being captured and stored by businesses, and indeed the company may have no idea of what is even being sent or received. In spite of that lack of awareness on the corporate level, that does not necessarily mean that a court will conclude that the messages are beyond the scope of electronic discovery in certain contexts, although there is an argument to be made that the temporary nature of the data is outside the scope of what the rules intended to capture in defining electronically stored information. And in any event, the fact that such data might be found beyond the scope of e-discovery in certain cases does not mean that the other side won't find it posted on the Internet somewhere and use it to its advantage anyhow. As with much electronic data, it is the data you don't know about that can be the most damaging.
Yet another challenging issue that courts have only begun to grapple with.
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