With many people working remotely, collaboration tools such as instant messaging, team workspaces, enterprise social platforms, and even electronic whiteboards have become indispensable. They enable geographically dispersed employees to quickly share information and keep projects on track. Remote workers are also using these tools to communicate with customers, suppliers, and business partners.
These platforms now hold valuable company information that could be subject to discovery in litigation. Federal Rule of Civil Procedure 26(b)(1) states that the parties to litigation “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Organizations must develop policies and procedures for capturing and preserving the information stored in collaboration tools and reviewing that information’s relevance and proportionality to any anticipated or pending litigation.
This is a challenging proposition. Organizations often use multiple collaboration platforms, each with its own data format. Few organizations know where all of their information is stored, much less how to collect it into a single, searchable repository.
E-Discovery Challenges: Courts Taking Notice
The growing use of collaboration tools is starting to gain the attention of courts. In Benebone LLC v. Pet Qwerks, Inc., Pet Qwerks moved to compel the production of Benebone’s Slack messages that were relevant to Pet Qwerks’s e-discovery requests. Slack is a cloud-based communications platform that enables direct messaging and public and private chat rooms.
Benebone took the position that Slack messages should not be subject to discovery. The company estimated that it had 30,000 Slack messages, and that it would cost as much as $255,000 to capture, process, and review those messages. Therefore, Benebone argued, producing the Slack messages would not be proportional to the needs of the case.
However, the court granted the motion to compel on February 18, 2021. Although the court believed that Benebone’s cost estimate was “substantially inflated,” it recognized that the cost would be considerable. Nevertheless, the court held that “a focused search for and production of Slack messages is proportional” given that Benebone was seeking monetary damages “allegedly in the millions of dollars.”
Identifying Data Sources as Part of E-Discovery Policy and Procedure
Meeting e-discovery requirements on a short timeline during litigation only increases the costs. Additionally, organizations that fail to comply with an order to compel disclosure face the risk of sanctions under Federal Rule of Civil Procedure 37. Therefore, it is prudent for organizations to understand the scope of information stored in collaboration platforms and develop a plan of attack.
As a first step, organizations should conduct an inventory of all the collaboration tools in use, as well as which individuals, departments, and business units are using which tools. This can help prioritize efforts to develop a data collection and search strategy. In-house counsel or outside attorneys can identify areas of greatest risk, such as human resources, finance, or product development.
Next, the IT department should determine where the data for each application is stored. This can be a complex question—for example, a single conversation in a team meeting space could include multiple text messages, emails, documents, and more. This data could be stored in multiple locations with varying degrees of accessibility.
The Legal Analysis
The legal team can then analyze what information should be gathered and how it might be searched. There are likely multiple versions of documents and messages, and the legal team will need to determine which should be preserved and reviewed. The information stored in team meeting spaces is often added in an ad hoc fashion, making it difficult to analyze.
Depending on the level of searchability required, organizations should consider investing in a data archival or e-discovery solution. Ideally, the solution would provide native search of multiple data types in collaboration platforms and content repositories. It should also enforce consistent retention policies to reduce data volumes while ensuring that relevant information is not deleted or lost.
Organizations embroiled in litigation should consider retaining an e-discovery expert who can testify credibly as to the effort and cost required to produce information stored in collaboration platforms. This can aid in rebutting motions to compel based upon proportionality.
Don’t Forget Video
Video conferencing has become a key component of remote work, providing a more interactive experience for meeting participants. Popular video conferencing platforms make it easy for the host to record the meeting, creating yet another source of potentially discoverable information.
Preserving video recordings would be an enormous burden, however. The file size of a high-resolution recording of an hourlong meeting with shared content could consume multiple gigabytes of file space. Luckily, the Federal Rules of Civil Procedure and e-discovery principles would not likely require an organization to retain video recordings in the regular course of business. Even if litigation is anticipated or pending, the video would be required only if the information cannot be obtained from other sources.
Nevertheless, practitioners should advise their clients to limit the recording of virtual meetings through company policies and video conferencing platform settings. Additionally, organizations should ensure that their document retention policies adequately address virtual meeting recordings.
Learn More About Current Issues Affecting the Legal World
Arthur C. Clarke predicted in 1964 that in 50 years, workers “will no longer commute—they will communicate.” Did the futurist envision a world with a ubiquitous network capable of supporting real-time collaboration?
Clarke likely did not anticipate the legal issues that such a world would create. Collaboration tools now hold huge volumes of corporate information that could be discoverable in litigation. Practitioners should take steps to ensure that their clients are managing that information properly and preserving it when appropriate.
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