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Electronic Communications & Social Media. TWEET – RU LIABLE?. Scott D. Collins, CRM Risk Manager – Bonfils Blood Center RIMS Western Regional Conference - September 2012. So what are our goals today?. Discuss liability exposures generated by e-communications and social media

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electronic communications social media
Electronic Communications & Social Media


Scott D. Collins, CRM

Risk Manager – Bonfils Blood Center

RIMS Western Regional Conference - September 2012

so what are our goals today
So what are our goals today?
  • Discuss liability exposures generated bye-communications and social media
  • Give you some strategies to manage these exposures
  • Discuss some examples
the privacy illusion1
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
the internet never forgets
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?
e mail esi
E-Mail & ESI

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



E-Mail & ESI

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
legal discovery and data preservation
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!

E-Mail – A Case Study

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:


“I don’t think we should”



“Can’t believe”



“Do not share this”


“just between us”


“serious trouble”


“too late”

“huge mistake”

“Highly sensitive”


E-Mail & ESI – What to do?!?

  • 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?!?

  • 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?!?

  • 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?!?

  • 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
using social media for employee recruitment
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?
friend your employees
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!
monitoring policies1
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
monitoring policies2
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
social media policies
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)
social media policy examples
Social Media Policy Examples
  • Opportunity-based
  • Threat-based:
social media policies1
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
things move fast
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
and they hit hard
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
bonus points
Bonus Points!