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TWEET – RU LIABLE? Electronic Communications & Social Media Scott D. Collins, CRM Risk Manager – Bonfils Blood Center RIMS Western Regional Conference - September 2012

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Page 1: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

TWEET – RU LIABLE?Electronic Communications & Social Media

Scott D. Collins, CRMRisk Manager – Bonfils Blood Center RIMS Western Regional Conference - September 2012

Page 2: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

So what are our goals today?• Discuss liability exposures generated by

e-communications and social media• Give you some strategies to manage these

exposures• Discuss some examples

Page 3: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

The Privacy Illusion

Page 4: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

The Privacy Illusion

• “Private” posts and emails are often not• Anonymity is history• Your private, personal life is on the internet

already• Return of the “small town” effect?• If you want to keep it private, don’t post it

Page 5: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

The Internet Never Forgets

• Your Facebook posts exist forever!– Often, even if you delete them

• Situations change, friends change, but your hotheaded email from 2000 doesn’t

• What will you think about your tweet in 20 years?

Page 6: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

E-Mail & ESI

Email – a ubiquitous and useful tool for individuals, businesses, employees…

AND THEIR LAWYERS!

Page 7: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Electronically Stored Information (ESI)

More & more is the centerpiece of litigation:• It is saved (often forever!) and traceable• Often used informally, and gives a false

sense of privacy

E-Mail & ESI

Page 8: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Legal Discovery and Data Preservation

• Legal duty upon notification or reasonable suspicion of litigation– Preserve all related documents and records

• Including voice mail

– Email electronic copies to Legal / Risk– Check with IT if unsure how to save– Don’t try to hide / delete / alter anything!

Page 9: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Lehman Brothers c.1850 – 2008– Lawyers appointed to investigate

Lehman successfully data mined over 34 million pages of documents to uncover wrongdoing

– Here is a sample of the search terms used:

E-Mail – A Case Study

Page 10: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

“stupid”

“huge mistake”

“Can’t believe”

“serious trouble”

“shocked”“Speechless”

“unsalvageable”

“HIGHLY SENSITIVE”

“just between us”“Do not share this”

“confidential”

“DUMB”“uncomfortable”

“too late”

“I don’t think we should”

“OMG”

Page 11: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

• Write every email with the understanding that others may read it

• Don't write anything that you wouldn't state verbally to the recipient in a business conversation

• Don't write emails when you are angry or upset!

E-Mail & ESI – What to do?!?

Page 12: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

• Avoid using abbreviations and slang • Don’t label behaviors

– e.g. Harassment, Discrimination, Retaliation• Skip attempts at humor…especially if

serious subject• Be clear and concise• Avoid sending long emails

E-Mail & ESI – What to do?!?

Page 13: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

• Employees writing improper emails, esp. harassing or threatening?– Stop the problem quickly - inform mgmt / HR

• Never state anything you are not willing to defend on a witness stand!

• Beware of emotional context– Talk directly when problems arise

E-Mail & ESI – What to do?!?

Page 14: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

• Sensitive issue? Discuss over the phone, or even better…in person

• Stick to the facts: Avoid opinions or conclusions

• ESI is NOT erased when you hit “Delete”. It will likely stick around forever

E-Mail & ESI – What to do?!?

Page 15: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Using Social Media for Employee Recruitment

• Responsible for what you learn– Visual Observations: Age, Race, Disability– Hobbies and Interests: Indicate health,

genetic info, religion, sexual orientation, etc.• Can you prove it didn’t influence you?• Is it worth the liability?

Page 16: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Friend your employees?

• “Friend your friends, not your employees”, good idea, but not in your SM policy

• There are things you don’t want to know• Be aware of what you post if your

employees or others at work will read it – remember your influence!

Page 17: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Monitoring Policies

Page 18: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Monitoring Policies

• May not protect you:– e.g. Client – Attorney, Facebook etc.– Stored Communications Act & Electronic

Communications Privacy Act, Computer Fraud and Abuse Act, wiretapping laws, common law invasion of privacy theories, other

Page 19: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Monitoring Policies

• What you learn may trigger liability:– Failure to act on criminal activity– e.g. Doe vs. XYC Corporation - NJ

• Same issues with wrongful termination /discrimination claims

• Must define what is monitored and do so uniformly

Page 20: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give
Page 21: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Social Media Policies

• Social Media is a powerful tool that can be successfully leveraged

• Two stances: – Opportunity Based (do do)– Threat Based (don’t do)

Page 22: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Social Media Policy Examples

• Opportunity-based

• Threat-based:

Page 23: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Social Media Policies

• Beware of Labor Law issues:– Problem Areas: Overbroad (must provide

examples)– Saving Clauses (not useful unless specific)– “Disparaging and defaming language” – not

lawful – e.g. working conditions

Page 24: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Things move fast!

• JetBlue Flight 191 3/27/12– Q: How long did Jet Blue have to react?– A: Not very long!– Multiple videos posted before landing– Passengers were watching their own drama

unfold on CNN live

Page 25: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

And they hit hard…

• “Innocence of Muslims” Video– Protests in 20 Countries– Death of US Ambassador - toll still mounting…

• YouTube - United Breaks Guitars– 12 MILLION+ views, Millions of $– One dissatisfied customer

Page 26: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Bonus Points!

“<YOUR COMPANY> Sucks”

Page 27: Electronic Communications & Social Media. So what are our goals today? Discuss liability exposures generated by e-communications and social media Give

Questions?