Text Messaging, Facebook Can Get You in Legal Trouble

How we miss the quaint times when text was just a quick way to chat with buddies. Today, these fleeting missives, now integral to so many work lives, amount to a multimillion-dollar corporate risk. Organizations sit largely unprepared while text messages replace e-mail as the digital smoking gun.

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You know how it goes: On mobile devices, employees peck out details of their private lives, remarks about colleagues and, inadvertently or not, confidential business information. Things people would never say out loud or in memos fly around in text, often memorialized in digital archives that you don't control. It's juice for a legal adversary.

Text messages about employee firings and extramarital sex recently brought down Detroit Mayor Kwame Kilpatrick and his chief of staff, Christine Beatty.

Last year, three police officers sued the city and the mayor for wrongful termination, claiming they were whistle-blowers who had been retaliated against for discussing possible misconduct in Kilpatrick's administration. During the case, Beatty testified that one officer, Gary Brown, "was not fired." But text messages subpoenaed from SkyTel, which provides pagers to the city, said otherwise.

"I'm sorry that we are going through this mess because of a decision that we made to fire Gary Brown," read one of Beatty's texts to Kilpatrick, with whom, as other messages revealed, she was having an affair.

The officers won the case and $8 million. The city executives lost their jobs; Beatty resigned in January and Kilpatrick in September. In October, Kilpatrick was sentenced to four months' jail time.

Corporations are just as vulnerable. When all 100 of the Fortune 100 are involved in legal proceedings, you know you probably can't avoid e-discovery at some point in your career. And when your company gets hit with a lawsuit, you'll likely have to retrieve and reveal employee text messages relevant to the case, along with other newer forms of communication, such as instant messages and the words, pictures and video from social networking sites, blogs and wikis. But the way some CIOs are managing these technologies--sometimes by not managing them at all--makes that task harder and more expensive than it should be, says Alan Brill, senior managing director at Kroll Ontrack, where he founded the computer forensics and computer security functions.

CIOs dealing with e-discovery in a Web 2.0 world must learn new ways to limit the cost, business disruption, legal liability and potential public embarrassment from what employees say and where they say it. You have to plan for how you will collect data when you don't control it, whether it be text messages stored on the servers of your wireless provider or data in hosted applications from a software-as-a-service vendor. Even systems you may control contain information that may not be managed at present: unified communications systems that combine messaging, voice and video must also be brought into your record-keeping process.

So far, to his knowledge, no major corporate lawsuits involving evidence from social networking sites have emerged, notes Kroll's Brill. However, as in the case against the Detroit mayor, text messages are showing up in court, and these cases give us a taste of what's coming in e-discovery. "I worry about the CIOs," he says, "who don't even recognize the danger."

Think of the legal implications of, say, a Twitter post like this, from a proud employee: "To you naysayers, our disc brakes are fine.