confidential and proprietary © 2013, actiance, inc. all rights reserved. actiance and the actiance...
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Confidential and Proprietary © 2013, Actiance, Inc. All rights reserved. Actiance and the Actiance logo are trademarks of Actiance, Inc.
Doug KaminskiVP – Western Region, Canada, & Latin America
ILTA – Great Lakes June 25, 2014
He Said What??!! Active Compliance and Discovery in Social Media and More
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• What’s Going On?• Social Business• Challenges• Types• What Matters?• Social Governance• Best Practices
• Questions
Agenda
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In the beginning, there was…
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“Only 10 percent of the 200 messages employees receive per day are useful and 18 percent is spam.” Thierry Breton, CEO
74,000 employees to communicate with each other via instant messaging and a Facebook-style interface
It’s no longer just about email.
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What’s Going On?
• BYOD• Cloud• Social Media• Dark & Dusty Data
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Impact of Social Media
• News• Politics• Marketing• Interaction• Connection(?)
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Wikis
Public Instant
Messaging
IndustryNetworks
WebUnified
Communication
Future
Social NetworksCollaboration
Today’s social business can’t use just one
collaborative technology to keep its
employees connected
– it needs to use them all.
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“The requirement for good retention, deletion and legal hold policy management goes beyond email content. . . . Organizations are looking to implement policies and technologies that can do the same for social media, files, and Microsoft SharePoint and other content.”
– Alan Dayley, Research Director, Gartner
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Protect company’s valuable confidential information
Protect personal customer information (e.g., health, $)
Guard against inappropriate employee communications
Comply with supervisory and recordkeeping requirements
Four Key Information Governance ResponsibilitiesInformation governance, or IG, is the set of multi-disciplinary structures, policies, procedures, processes and controls implemented to manage information at an enterprise level, supporting an organization's immediate and future regulatory, legal, risk, environmental and operational requirements
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Supervisory & Recordkeeping Requirements
Regulatory Have recordkeeping, supervision, and other requirementsExamples: FINRA, SEC, HIPAA, FDA, GLBA, FERC
eDiscoveryDriven by ESI requirements, such as FRCPBroader scope than regulatoryApplies to any organization that can be involved in a lawsuit
Corporate Internal policies on record retentionInternal policies on supervising for appropriate use
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What keeps GC’s up at night?
Source: Association of Corporate Counsel “Chief Legal Officer Survey 2013”
2014+1%+1%+4%---+2%---+1%+5%
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Social Content Challenges
1 Unlike email, social content is dynamic and conversations channel hop
Searching can be difficult and costly without proper capture and archiving2
3 Can easily miss deletions and modifications where native platforms only capture at time of legal hold
4 Greater over-preservation risk without granular archiving capabilities to set precise content disposition
Confidential and Proprietary © 2014, Actiance, Inc. All rights reserved. Actiance and the Actiance logo are trademarks of Actiance, Inc.
The Rising Tide of 3.0 Cases
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2X annual tally of social media evidence cases doubled each year for the past several years – John Patzakis, Attorney/CEO of X1 3
66% rise in social media evidence cases in 2013, from 53 monthly average to 88 for September alone – Gibson, Dunn & Crutcher 21
The Rising Tide of 3.0 Cases
1. Source: http://www.insidecounsel.com/2013/11/01/technology-is-instant-messaging-the-next-email2. Source: Gibson Dunn, “2013 Year-End Electronic Discovery and Information Law Update,” Jan 15, 2014 3. Source: New York Times, “Social Media a Trove of Clues and Confessions,” Feb. 16, 2014, http://www.nytimes.com/2014/02/16/sunday-review/social-
media-a-trove-of-clues-and-confessions.html?_r=0
Instant messaging and enterprise social are becoming “the new email” 1
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Treated as just another form of electronic communications. Content is determinative, not the channel1
2 Sanctions have levelled off, replaced by proactive information governance and defensible disposal*
3 More cases with social content pivotal to incidents
4 More cases with preservation lessons
What’s Trending in 3.0 Cases?
* Source: Gibson Dunn “2013 Year-End Electronic Discovery and Information Law Update” Jan 15, 2014
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Snapshot of Cases Turning on 3.0 DataSaliga v. Chemtura Corp. (D. Conn. Nov. 26, 2013)
Compelled production of IM. Discrimination - race, gender, religion
Instant Messaging
UPMC v. City of Pittsburgh (W.D. Pa. Oct. 25, 2013)
ESI includes IM. Defamation; conspiracy; statements of Mayor.
Instant Messaging
Defamation; unfair competition; disparaging comments re: business
Twitter; LinkedIn Fictitious Profile
Shepherd v. McGee (Nov. 7, 2013) Wrongful termination suit. Child protective services caseworker was fired for posts about parents taking advantage of welfare system
Crispin v. Audigier (C.D. Califiornia, May 26, 2010)
Copyright infringement suit Facebook, MySpace
AvePoint Inc. v. Power Tools Inc. (Nov. 7, 2013)
Richards v. Hertz Corporation (November 14, 2012)
Personal injury suit. Facebook content, such as status reports, emails, photos, and videos are discoverable if relevant to the matter.
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Snapshot of Cases on Preservation & Spoliation
Cotto v. Costco Wholesale Corp. (D. Kan. July 24, 2013)
Employer not required to preserve text from employee cell phone
Text messages
In re Pfizer, Inc. Securities Litigation ((S.D.N.Y. Jan. 8, 2013)
Company breached duty to preserve; legal hold to include eRooms
eRooms, Collaboration Platforms
Barclays $3.75M fine from FINRA. Systemic failure to record and retain IMs
Bloomberg IM
Southeastern Mechanical Svcs v. Brody (M.D. Fla. Aug. 31, 2009)
Gatto v. Unitied Airlines (D.N.J. Mar. 25, 2013)
Spoliation and adverse inference instruction
Social Media
Wrongful death suit and spoliation of photos. $10.6 M award reduced.
Facebook, MySpaceLester v. Allied Concrete Company (Va. Cir. Ct. Sept. 1, 2011)
Failure to preserve BB content led to adverse inference instruction
BB Text & Calendar Entries
Confidential and Proprietary © 2014, Actiance, Inc. All rights reserved. Actiance and the Actiance logo are trademarks of Actiance, Inc.
Main Types of Social Content
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“Unified Communications (UC) has reached mainstreamadoption with approximately two thirds of businesses engaged or actively planning UC upgrades….”
“During the coming year we will see the continuedadvancement in UC acceptance and adoption, as UC is a key factor in enabling real time connectivity….”
- Elizabeth Herrell, Constellation Research, January 4, 2012
UC has arrived…
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What is UC?• UC, UCC, UC2 – Unified Communications• Lync/OCS, Cisco Jabber/CUP, IBM Sametime• Components
– IM– Presence– Group Chat– Voice– Video– Web Meetings / Desktop Sharing– Email
• All components integrated into a single framework
UC Provides Unified Presence
See how a person can be contacted and
select the mode
UC Allows You to Move Between Modes
Easily switch/add communication
modes
Presence integrated into Outlook
Displays presence of sender and provides
options to contact that person
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“A new generation of social enterprise apps will finally deliver the productivity businesses desire by systematically grouping and rating people, information, and processes required to answer business needs.” HENRY DEWING, FORRESTER ANALYST, DECEMBER 2011
“By 2016, 50 percent of large organizations will have internal Facebook-like social networks, and that 30 percent of these will be considered as essential as email and telephones are today.”
GARTNER
Enterprise Social Software (ESS) is Booming
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• Social software for business that lets you collaborate and share information with colleagues and partners, thus enhancing productivity
• Key Enterprise Social Software (ESS) platforms– Jive– Microsoft SharePoint– IBM Connections– Chatter
• Increase employee productivity by 20-25%(Source: McKinsey Global Institute report, July 2012)
• Facilitate collaboration, enhance communication• Share knowledge more easily
What is it and why ESS?
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• Regulatory compliance gaps– Granular archiving lacking in existing ESS platforms
• eDiscovery gaps– Lack of context in captured content prolongs eDiscovery,
thus increasing costs• Potential for data leakage
– Lack of real-time alerts heightens likelihood of data leakage
Limitations of ESS
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• Sanctions if an organization falls out of compliance– Regulatory sanctions– eDiscovery sanctions
• Loss of confidential information– Possible weakening of market position– Possible loss of competitive advantage
• Brand reputation can be damaged
Gaps Leads to Risks
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• Just another form of electronic communication• Electronically Stored Information (ESI) includes social
software content– FRCP Rules 26 and 34
• Content is determinative, not the channel– FINRA 10-06 and 11-39– IIROC 11-0349– FERC Order 717, CFTC Part 4 amendments– FDA draft guidance on off-label usage (Dec 2011)
• But capture is challenging!
How is ESS Content Treated?
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For example: Connections user profiles
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Norv has something to say
• Norv posts a message on Brian’s wall saying, “Rumor has it you’re leaving the company”
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And Sarah has a comment
• Sarah sees Norv’s message and posts a comment.
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But Norv has a change of heart
• After Norv deletes his original post, it looks like it was never there. But that doesn’t mean it never happened.
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36Pg. 36
“By 2015, the 20% of enterprises that employ social media beyond marketing will lead their industries in revenue growth.
By 2016, 15% of businesses will deploy a horizontal social technology layer that integrates with several business applications.”
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Social Media Maturity Curve
Pre-Consideration• No Social Presence
• Restrictive social policy
• No Social Tools
• Need to: identify options, best practices
Early Consideration• Some Corporate Presence
• Banned/ restrictive policy in place
• Pilot program for content distribution might be in place
• Need to: justify distributed teams usage
Early Adopters• Corporate Presence
• Acceptable use policy
• Social media being used by distributed
teams/advisors
• Need to: use social to develop, strengthen relationships, for some also as a sales
channel
Early Majority• Corporate SM presence
• Social media usage by distributed teams advisors
• Acceptable use policy
• Next step, use social to develop, strengthen relationships, for some also as a sales channel
• Previous concerns about FINRA and/ or impact of social media overcome by market acceptance and demonstrable results.
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Current Trends
Important challenges!
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Current Trends
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Two Approaches
• Reactive - capture data once required (cons)• Cooperation with both parties and networks
• Explicit agreements and privacy concerns (NLRB)• Use of “screen scrubbers” or API based tools
• http://www.x1discovery.com/• Proactive – capture data as it’s created
• Depends on need and industry• How much is too much?• Archiving vs. active capture vs. site monitoring?• Many, few, broad
• Best solution for you will depend on your need and requirements
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Change the Way You See Preservation/Archiving
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• 1 thread becomes 3 emails– No way to relate them, so no
context possible– Result is an unusable email
mess
Archiving social content via email is inefficient
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• Content awareness– Complete capture of entire conversations– Capture of modified/deleted social data– Ability to see “point in time”
• Context– This isn’t like email…– Think “conversations” not “documents”
• Identity• Consolidated search• Real-time alerts and blocking
What Matters?
Confidential and Proprietary © 2014, Actiance, Inc. All rights reserved. Actiance and the Actiance logo are trademarks of Actiance, Inc.
Best Practices & Technology
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12 Best Practices to Capture & Archive Social Content
1. Get visibility of all real-time communications
2. Understand that native functionality may create gaps
3. Define policy & strategy that reflect use and need for social channels
4. Provide education for your users on acceptable use
5. Include in custodial interviews and document requests
6. Apply disclaimers to communications
7. Recognize that context and complete capture matter!
8. Don’t treat social content like email
9. Consider active compliance to prevent lawsuits
10. Record and store communications in a central location (archive/ECM)
11. Align people, policies, and technology
12. Automate the process where you can
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Technologies for Proper Capture and Archiving
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• Contact us– www.actiance.com– [email protected]– (888) 349-3223– @Actiance
• Further reading– Actiance Collateral Library
http://www.actiance.com/resources.aspx
• Other Actiance webinars– Legal Issues of Social Business– Global Compliance for Social Business
Want to learn more?
Confidential and Proprietary © 2013, Actiance, Inc. All rights reserved. Actiance and the Actiance logo are trademarks of Actiance, Inc.
Doug [email protected]
Questions Not Already Answered?