Text Messaging, Facebook Can Get You in Legal Trouble

I'm an engineer on that product. We test to 5x tolerance on the label, so you can be rougher on them than you think. Don't worry." You've got potential product liability in 140 characters, warns Tom Mighell, a lawyer and senior manager at Fios, an electronic discovery consulting firm.

Rules? What Rules?

Since the late 1990s, arguments about whether and how electronic evidence should be produced have regularly bogged down civil lawsuits and IT departments alike. Broad discovery demands for, say, five years' worth of e-mail for dozens of employees somehow related to a given case are common. Along the way, parties protest what they see as undue burden and the multiple millions of dollars it can cost to retrieve electronic information. Again and again, judges find they must appoint special magistrates to preside over discovery fights before the meat of the case is tried.

The way one employee discrimination suit, against investment bank WestLB, played out, the parties spent almost three years fighting about the production of text messages and e-mail and just four months on the facts of the case. The suit, filed in 2004, concluded this summer--though not before the CIO was deposed by hostile attorneys. The plaintiff got many of the archived messages she demanded. She also got a favorable verdict and $1.9 million. Some companies are still winging e-discovery, even two years after amendments were made to address the process in the Federal Rules of Civil Procedure, which are the standards for trying civil lawsuits.

The rules call for the parties in a suit to meet early in the proceedings to disclose the kinds of electronic records available, whether they are "reasonably accessible" and in what time frame. The parties must create a discovery plan for electronically stored information of all sorts, including databases, e-mail, spreadsheets, data published on the Web, as well as text and instant messages.

But when a lawsuit hits, some organizations struggle to answer such questions. Of 60 in-house corporate attorneys surveyed by Océ Business Services, a document management company, just four said their organization is "well prepared" to comply with a discovery request involving both paper and electronic information. Twenty-five of the 60 haven't implemented an internal e-discovery process. Why? "Too risky," "too expensive" and "takes too much time away from case- and business-related matters," respondents said.

Preparing for discovery is time-consuming and it does cost money. But going into court unprepared is more costly, according to the Institute for the Advancement of the American Legal System, a think tank of judges and lawyers.

Some legitimate cases make no financial sense to pursue if you must pay lawyers hundreds of dollars per hour to argue about whether and how to produce data, then pay outside consultants hundreds of thousands of dollars on top of that to get the data in shape for court, said James Bredar, a magistrate judge for the U.S. District Court in Maryland, in the institute's recent report urging e-discovery reform. "The just resolution of a dispute has little value to a party if bankruptcy was the price of its achievement," he said.

Even as e-discovery continues to vex, the pace of technology change compounds the issues.

Smoking Gun Versus Private Thought

This year, more than 600 billion wireless text messages will zip through the air worldwide, according to CTIA, an association of wireless technology providers. That's a 10-fold increase from 2005's 57 billion.

Instant messaging, meanwhile, seeps into companies unsanctioned and unpoliced by IT. Social-media technology, too, presents trouble. Facebook, LinkedIn and MySpace, for example, encourage their combined 280 million members to broadcast what they're doing and boy, do they--from work and home, from hotels on public computers, from trains and planes on cell phones. Users of these technologies move fluidly online between the personal and the professional, says Fios's Mighell.

So far, the