If you’re in business, you may have heard this pithy and cautionary piece of legal advice: “Email like it may one day be read aloud in a deposition.”
While the sentiment of the statement still stands, nowadays the word “email” could be replaced by any number of popular messaging platforms that have become the communication method of choice for many businesses. While these apps have been around for several years, the onset of the COVID-19 pandemic and the resulting surge in remote work has made these channels of communication more ubiquitous in the workplace, where they serve as quicker and more efficient substitutes for traditional emails, phone calls, and face-to-face conversations.
The sheer number of these types of platforms is mind-boggling. Some of the most popular include Slack, Microsoft Teams, WhatsApp, Google Suite, WeChat, GroupMe, Telegram, and Signal…but the list goes on and on. Additionally, many social media platforms also have direct messaging capabilities that are increasingly being utilized for business purposes, such as Facebook Messenger and Instagram. Some companies may even have their own proprietary, private corporate portals specifically designed for use by their employees. In other cases, company communication tools may be encompassed within larger project management software and/or CRM platforms (products like Salesforce, Nimble, HubSpot, Zoho, Monday.com, Basecamp, etc.)
While the variety of communication and organizational software is revolutionizing the way companies operate on a daily basis, it is also complicating the process of e-discovery in the context of litigation. Long gone are the days when the scope of electronic discovery was primarily confined to emails. Attorneys should be inquiring about the main method(s) that their clients and other parties use to communicate, both internally and externally, in anticipation that this will likely involve extracting and reviewing information in a way they may not necessarily be used to.
Newer messaging apps typically contain more complex features than email or even traditional text messaging. For example, many apps provide the user with the ability to edit, unsend, or delete messages, while some don’t save messages at all (a.k.a. “ephemeral” messaging apps). Workplace and social messaging platforms also tend to provide an increased level of data interconnectivity that can make parsing out relevant information difficult. An app of this kind may be structured so that conversations include multiple channels, sub-channels, and threads that contain links, polls, photos, videos, gifs, emoji reactions, and other types of files from hundreds of users. How does one go about separating the wheat from the chaff in these instances?
The ability to extract this information in a usable format is dependent on several factors. One is the limitations imposed by the app itself. While some apps have helpful e-discovery features, others may require research into how they host and store data. When data is extracted, it could be in a variety of file formats, with some much more readable than others. The abundance of these types of apps also means an abundance of proprietary code for which no easy e-discovery tools readily exist. This has led to a need for third-party services that host e-discovery (e.g., Relativity, Everlaw, Logikull, etc.) to enhance their technological capabilities in this area. While these services continue to try and address this gap, attorneys will likely find varying capabilities depending on the service they use and which app they hope to obtain data from.
However, it’s important to note that e-discovery platforms like those mentioned above typically license their products to vendors, distributors, and other companies that offer client support and project management services. In these instances, a firm’s e-discovery capabilities in relation to messaging apps would also be partially dependent on the knowledge and technological competence of the client support or project management group that oversees the discovery process.
But the responsibility of e-discovery is certainly not one-sided. Federal Rule of Procedure 26(b)(1) states that, “Parties 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, considering… the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” It is becoming increasingly common for the company being asked to produce electronic communications to bear the burden of producing them in a readable manner and with the pertinent metadata.
As one example, a recent case in the District of Massachusetts involving the alleged misappropriation of trade secrets found that the defendants (BIA Capital Management) committed misconduct in their failure to produce required Slack messages to the plaintiff (Red Wolf Energy Trading LLC). The defendant claimed that there was “’no ready mechanism’ to search and produce Slack messages” and insisted that it could not find an outside vendor that could do so, opting to hire a foreign-based programmer to conduct the search instead.
However, the Court found that there were vendors and e-discovery processing tools available, as well as Slack’s built-in search functionality that “could be used to verify the accuracy of a Slack production.” The Court also criticized BIA’s “decision to utilize an unpaid novice in Kazakhstan to conduct its search for Slack messages, rather than an experienced vendor in the United States at a modest cost.” The Court subsequently entered a default judgment for violation of discovery orders. Red Wolf Energy Trading LLC v. BIA Capital Management LLC, 1:19-cv-10119-MLW (D. Mass., 2022)
The e-discovery process can become incredibly expansive and time consuming due to the myriad channels being used by businesses, the sheer volume of communications being exchanged, and the quantity of data being collected. Attorneys should therefore become familiar with the types of messaging apps and accompanying e-discovery tools available.
If you have any further questions regarding e-discovery related to workplace messaging platforms, please contact Roger Barton.
