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June 20, 2023 article

Not Your Same Old E-Discovery Reminder —Be Ready for Discovery of Collaborative Tech and Social Media

C. Jade Davis

Corporate America's steady shift to hybrid and remote working has catapulted the use of collaborative technologies and remote work applications that connect employees like Cisco, Asana, Hive, Slack, Zoom, Trello, and Microsoft Teams, to name a few. Although this technology has existed for years, the pandemic brought about a drastic shift to this remote landscape allowing employers continuity in conducting their business, connecting with their employees, and project management. As a result, these collaborative technologies morphed from luxuries to necessities. With that change comes the need to be prepared for demands for the production of these electronic communications as electronically stored information (ESI) will rapidly become a fact of life for construction lawyer's litigating claims. Be ready.

In a world where communication is abundant, attorneys must understand how parties use collaborative technology and retain data to preserve potentially discoverable electronically stored information (ESI) and ensure early and active cooperation with parties. We know that ESI is purposely not defined precisely. The Rule 34 Advisory Committee provided that “[t]he wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of [ESI].” However, we know a few things about ESI: 1) it includes data stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; and 2) it is data that is stored somewhere. Such broad parameters bring these new and indispensable technologies within our purview.

In addition to companies adapting to new technologies and processes, courts are grappling with discovery disputes associated with the preservation and collection of meeting recordings from RingCentral, Microsoft Teams, and Zoom; posts from Slack, Flowdock, Trello, Dapulse; and chats from Quip, Basecamp, and others mentioned above like Slack. Courts have ordered the production of Slack messages after determining they were relevant and discoverable, ruling that “requiring the review and production of Slack messages [ ] is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional [ ] if the requests and searches are appropriately limited and focused.”

Today,  ESI is abounding with emojis, GIFs, videos, edited photos, electronic documents such as word, excel, Google Sheets and Docs, decks, email, text messages, iMessage, chats, recordings, and transcripts from Facebook, Instagram, Twitter, LinkedIn, Snapchat, TikTok, Reddit, Twitch, Discord, Slack, Microsoft Teams, GSuite, WeChat, WhatsApp, Signal, Telegram, Wickr, Zoom, WebEx, Teams, Skype, and more. Key questions to consider when evaluating a client's data sources include:

  1. What technologies (e.g., applications, software, and hardware) are utilized for project management, collaboration, and communication?
  2. Where does the data reside?
  3. How long is the data retained and accessible, and who has access?

What Technologies Are Used?

It is imperative to understand a company's workflows down to each department and not just what has been written in a policy. For example, in-house counsel may advise that the company uses NetSuite for project management, Outlook for email and calendaring, and Microsoft Teams for meetings. However, service technicians, unbeknownst to in-house counsel and against corporate policy, may communicate regularly through WhatsApp or text messaging from personal or company-owned devices. Once a technology is identified, it must be reviewed and categorized according to its data retention and archival policies set by default or personally by the company/custodian. While this seems archaic, newer technologies such as ephemeral messaging have muddied the waters.

Ephemeral information is stored briefly and is kept somewhere during its storage; therefore, it is ESI. There are three types of ephemeral messaging:  

  1. Purely Ephemeral Messaging – deliberate, permanent, and automated message deletion built into the application; unchangeable deletion trigger; no archiving or storage capability; deletion consistent for senders and recipients; E2E encryption.
  2. Quasi-Ephemeral Messaging – preservation possible and customizable by the user; deletion impeded by external mechanisms such as message forwarding or screenshots; content deleted but metadata preserved.
  3. Non-Ephemeral Messaging – deliberate and permanent message deletion not built into the application; deletion inconsistent amongst senders and recipients; deletion from the application does not delete from other sources like servers and backups; deletion timeframe variable, no E2E encryption.

For example, the aforementioned service technician may have tried to send a one-time untraceable message to a co-worker about a machinery inspection via Facebook Messenger's end-to-end (E2E) encrypted Vanish Mode chat; however, the data may still be available. While some E2E encrypted applications are untraceable, many are not—they store data instead of deleting permanently. Vanish Mode and Snapchat are examples of ephemeral messaging that purportedly enable users to send temporary messages to anyone with an active chat, which disappears after the recipient reads them. Yet, depending on the specific ephemeral messaging the application adopts, the data intended to be sent temporarily could live on a backup in perpetuity.

Moving beyond a company’s attempt to circumvent production obligations by nefariously using ephemeral messaging, company policies must be explicit about technology use, accept, and prepare for unilateral employee use. Unfortunately, given the fascination and unfortunate ignorance regarding the retention of these communications, requests will not dissipate. The Sedona Conference tackled this emerging issue in 2020 and revisited it. In its Commentary on Ephemeral Messaging (the “Commentary”), the committee considers cross-border data protection compliance concerns and provides use guidelines and recommendations to judges for evaluating good faith uses of corporate ephemeral messaging. Certainly, a balance is needed.

Where Does the Data Live?

Newer technologies offer storage on a company/custodian’s physical device (i.e., server, tablet, or phone) or in an enterprise cloud, the app’s cloud, or some combination. Understanding where the data resides provides purview for preservation, legal holds, and ensuring the accuracy of retention policies. If numerous entities are involved, what may seem like a standard request could mushroom into various requests and processes for each.

How is the Data Stored?

Each application and program is different and thus requires the preservation of various types of metadata. For example, some applications have shorter retention periods than others, necessitating more expediency in preservation. Further, metadata is not exported in the same format, which brings additional considerations for collection and review. Finally, while legal service providers can assist, attorneys must conduct proper fact-finding. For example, it is well-known that employees innocently fluctuate between using a work laptop and their personal computer. Because discovery rules require the preservation of business data on any personal device, preservation is impossible on undiscovered devices. Unfortunately, this is difficult—employees typically use different devices, unauthorized applications, and personal accounts that create an impossible labyrinth to navigate.

Viable Tips in the New Frontier to Give Clients

  • Disallow use unless reasonable compliance concerns necessitate E2E communications that self-destruct. No intentional spoliation.
  • If use is necessary, only use purely ephemeral applications. 
  • Treat all use as if data created will be printed and placed onto letterhead. Courts treat social media the same as other evidence.
  • Understand access, users, capabilities, settings, data retention, storage, and reporting.

Viable Tips for Attorneys

  • Use a checklist when conducting eDiscovery fact-finding.
  • Ensure policies include all relevant data acquired from collaborative tools. For example, even if a Zoom meeting is not recorded, there may be data associated with the meeting that may be relevant and available such as the date, time, participants, duration, and chats shared during the session.
  • Obtain reporting feature information and run reports to simplify legal inquiries and intercompany investigations.
  • Ensure policies detail employee access and deletion of data.
  • Ensure means to preserve, search, cull, and produce collaborative platform data based on critical criteria such as relevant custodians, dates, channels, and keyword searches.
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C. Jade Davis

Hall Booth Smith, P.C. Tampa, FL | Division 1: Litigation & Dispute Resolution