The E-Discovery Field Guide
A Lesson for E-discovery: Don’t “Slack” on Considering New Forms of Electronic Communication
Last week, Slack, a company providing an electronic workplace messaging and collaboration platform, was the latest tech company to go public. If the market is any indication, businesses must be hungry for a new communication tool. And with about 10 million Slack users, there are messages probably being created right now that may have some relevance to litigation down the road.
For lawyers and E-discovery professionals, the explosion of new forms of electronic data presents many challenges. Starting with the most basic, many lawyers might not even know to ask a client-business if it uses collaborative messaging. Slack is but one of many such platforms, and others include Google Hangouts and Skype. As the Slack IPO demonstrates, the way in which individuals and organizations communicate with each other can change rapidly, and these modes of communication go far beyond the traditional ways of electronic communication, such as e-mail and text messaging. Upon reasonably anticipating litigation, it is now not enough to issue a litigation hold directed at e-mail. Instead, the lawyer must carefully question their client, whether that client is an individual or organization, about all of the digital data that it uses and creates. Only then can the key initial E-discovery decisions be made, for instance: what data needs to be preserved, how it will be preserved, and what data is inaccessible or duplicative.
But beyond merely identifying these new sources of data, many complicated questions arise once that data is identified.
Again, let’s turn to the latest communication tool as an example. In Slack, communications occur in “channels.” Consider the basic bullets about channels as explained on Slack’s website:
- They can be organized by team, project, or whatever else is relevant to you
- Team members can join and leave channels as needed
- Threads allow for focused and organized side conversations within channels
Each one of these fundamentals raises vexing E-discovery problems. For starters, the traditional “custodian” method of identifying relevant data is inapplicable. Perhaps a certain channel “topic” might be directly identifiable as relevant, but at the beginning of an anticipated dispute, it will be difficult to have a granular understanding of what communication topics, as detailed as individual projects, could matter. And involvement in these communications can be much more fluid than is traditionally viewed for email conversations. Individuals can “join and leave channels as needed,” which calls into question basic notions such as the individual’s role and knowledge of what happens within a channel of communication. But that’s not all. There also are side conversations, “threads,” that might be in play as well. Whether these threads, which may be private communications, are duplicative of the main channel or otherwise inaccessible is another question, the answer to which will impact E-discovery decisions in the case.
The technical aspects relating to the collection, processing, review, and production of all this data is a new frontier as well. Unsurprisingly, several digital tools have recently been developed to fill this void.
The breakthrough of Slack serves as a reminder that in the ever-changing world of digital data, little remains the same, and attorneys should always consider that unknown data sources exist.
Enlisting the aid of experienced E-discovery counsel and professionals can be a big help in identifying and collecting that data. An E-discovery vendor may have just completed a Slack data collection and have useful insight into a process that neither the client nor lawyer have gone through.
New types of data will always create challenges. The E-discovery process is absorbing many new data sources all the time, and knowledge and application of past practices is an important tool to tackle a practitioner’s first Slack (or the next big digital communication platform) preservation, collection, or production.