How E-Discovery Accommodates Our Evolving Modes of Communication

In the not-too-distant past, there were a limited number of options for long-distance communication: mail, faxes, and telephone calls (and let’s not forget telegrams before that).

Today, of course, our options for communication are many and varied. From the moment we awake to the moment we go to sleep, we’re usually within arm’s reach of some sort of electronic device. Whether at work or home, we use tablets and computers for everyday tasks, so we’re constantly able to communicate by email, text messages, social media, video chats, various types of messaging apps, and chat or discussion features built into video games.

Our electronic conversations on these platforms are frequently brief and unmemorable. But those messages don’t disappear just because we’ve moved on—they’re saved in perpetuity on our devices, a company server, or somewhere in the cloud. They may never be viewed again—unless they contain data that has potential relevance in a legal matter.

When that happens, a person’s forgotten messages can resurface months or years later. And because of their newfound importance, there’s a need to identify, collect, and preserve them. A few years back, when electronic communications were simply emails and text messages, this wasn’t a difficult task. But in our current digitally-soaked society, with an ever-growing number of communication methods being used, litigants, and the e-discovery companies that assist them, must deal with the mounting challenge of gathering together the many strands of relevant, discoverable data to create a comprehensive picture.

Many channels of communication

The most difficult part of e-discovery isn’t gathering data—it’s doing the detective work of locating it. Most businesses have a preferred chat program for employees to communicate among each other, and sometimes externally, such as Microsoft Teams, Slack, Yammer, or HipChat. However, it’s not realistic to think that employees communicate exclusively using the “official” channel that you’ve set up. The days are gone when each employee used a Blackberry or company-owned computer that was locked down to limit the available communication options.

Today, a company can’t realistically stop its employees from using non-official means to communicate. As a result, a crucial step in the e-discovery process is pinning down any other modes of communication that employees might have used—and communicating that to the employer.

The fastest, cheapest way to get this information is to use custodian questionnaires (“CQs”)—essentially, electronic surveys that are sent to employees. When crafting your CQ, be as specific as possible about the custodian’s data storage, communication apps, and overall hygiene habits, but try to do so without too many open-ended questions. Within days or even hours, completed surveys can start yielding useful information about which communication channels have been used, and where to search for relevant data.

Going where the data is

After the places to search for data have been identified, the next job is to retrieve it. The difficulty of collecting data ranges widely across applications—Slack and Yammer make it relatively easy, for example. But it can be significantly trickier to access data that’s stored on an employee’s personal device or within a communication platform that someone uses mostly outside of work.

Not everybody knows that personal phones, tablets, computers, and other electronic devices could be subject to data collection in a legal matter if they’re used in relation to a job. That said, the question of whether an employee can be legally made to comply with discovery on their personal devices is a bit hazy under current law. When it’s necessary to collect relevant data from a device owned by an employee, the question of personal privacy comes up and can present a roadblock in the discovery process.

One way that companies deal with this problem is by making each employee sign a consent form allowing the company to access any personal devices that the employee chooses to use for work. So, fair warning to anyone who may have gotten in the habit of using the same chat app for personal and business conversations—by doing so, you may be giving the green light for your personal account to be subject to discovery.

When data is collected, it’s important to do it in a secure and defensible manner that preserves metadata—which can be thought of as “the data behind the data.” Metadata helps provide context about a set of data, such as when a message was posted, where it was posted from (including GPS data and the IP address used), who might have posted it, and who and when someone might have read it. All of this, as you can imagine, can be revealing and informative.

E-discovery is often painstaking and technical work, which is why it’s essential that it’s done by experts, whether internal or external to the organization. The technicians and investigators who do data retrieval work should have digital forensic experience and credentials, and the tools and methods they use must be forensically sound. In addition, they should be fluent in privacy laws and understand how to navigate them so that no violations take place during the discovery process. By relentlessly hewing to a forensically sound, compliant data collection process, you’ll benefit in the end when the data is legally admissible in court.

Data normalization

After data is collected from all the necessary sources, it must undergo a process called normalization, where all varieties of data are standardized into a uniform, accessible format. It’s harder than it sounds, especially when new programs and apps—and often thereby new data types—are growing at a more and more rapid rate.

But even long-existing data sources and formats can still be challenging. Take text messages, for example. In a typical text thread, there are often several topics being discussed at once, and sometimes there are simultaneous side conversations between two people in a larger group thread. Now, imagine that you’re a third party trying to piece a string of texts together from a span of weeks or months. What might make sense to the participants can be bewildering when read out of context.

With email, in comparison, there are subject lines that help in linking messages together, not to mention internal conversation and thread codes that are found in email headers (which is how Outlook and Gmail group conversation threads together). Text messages and other platforms lack this level of organization, which can make accurate normalization a lengthy and complex process.

Analyzing the data

Following normalization, this data is reviewed to determine what’s relevant and what’s not. Internal investigators or attorneys have an assortment of powerful software tools at their disposal—using algorithms, patterns, statistical analysis, and even forms of artificial intelligence—to locate the information that they’re after. Detailed analysis can connect seemingly unrelated people and events, determine the relevance of individual communications, and lead to previously unidentified sources of additional information.

But none of this can happen if a company doesn’t have a complete picture of the data available in its assorted communications channels, both official and unofficial. That’s why, when facing any pending litigation, your first and most important step should be an expansive search to locate relevant data wherever it may exist. Starting the process in a thoughtful, comprehensive, and legally defensible way will offer your best chance at a successful resolution.

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