How do companies use collaboration apps today—and how well are they incorporating the data into their ediscovery workflows?

Those were questions that Hanzo and ACEDS, the Association of Certified E-Discovery Specialists, set out to answer through a survey this fall. We’ve tallied the results and recently co-hosted a webinar, “2021 Survey Results: The State of Collaboration Data and Corporate Readiness,” to review the findings. In the webinar, I moderated a conversation with Doug Austin, editor of eDiscovery Today, and Mike Quartararo, the president of ACEDS. Here’s what we talked about.

Legal Teams Are Taking Ediscovery Seriously When It Comes to Collaboration Apps...

A quick note: while we often talk about prominent collaboration apps like the chat platforms in Microsoft Teams, Slack, or Google Chat, there are plenty of other tools that fall under the umbrella of collaboration. For example, any web-based project management, calendaring, or ticketing platform that enables real-time commenting and status updates would be considered collaborative content. That includes popular tools such as Jira, Confluence, Zendesk, Asana, Trello, Monday, and dozens of others.

Initially, companies largely overlooked the data in such collaboration apps, not considering them as part of their ediscovery or information governance pipelines. But our surveys have shown two trends:

• Companies are increasingly relying on these tools, with almost 40 percent this year stating they “can’t live without” their collaboration platform of choice; and
• Most companies include collaboration data in their information governance planning. About 60 percent say they already have organization-wide retention policies for collaboration data and another 25 percent stated that their organization hopes to implement those policies soon.

Those rising numbers are significant, Doug said, pointing out that “it’s evidence of just how important collaboration app data has become as a source of information for discovery.” Mike noted that this evolution is common in how businesses consider data. “It reminds me of how we thought about mobile devices maybe ten years ago; we didn’t think about all of the data that was created when people interacted with networks,” he said. In the same way, he continued, “People used to think of those chats [in collaboration apps] as insignificant and therefore not relevant. But you’d be surprised what’s communicated that could end up being highly relevant.”

The evolution in how organizations consider collaboration data is perhaps a natural consequence of the turning tide of case law about that data. Doug mentioned the Benebone v Pet Qwerks case as one example, pointing out that in this case, the judge concluded that there was no dispute that Slack data was relevant. Mike added, “Cases and court decisions are really what rules the day. In our system, when a court says, ‘Hey, you shouldn’t have done that,’ that’s our wake-up call. That’s how we learn what to do better.”

An interesting thing happens as organizations work with collaboration data: their confidence in managing that data for discovery decreases.

… But Legal Teams Lack Confidence in Their Ability to Manage Collaboration Data

While 90 percent of our respondents in 2020 stated that they were either “somewhat confident” or “very confident” in their ability to defensibly preserve collaboration content when required, that number has dropped off markedly. In the 2021 survey, only 82 percent expressed that level of confidence. When we asked about the ability to efficiently collect and produce collaboration data in response to ediscovery obligations, the results were even more significant, dropping from 93 percent confidence in 2020 to 78 percent in 2021.

As Doug said, “People are starting to realize the challenges of preserving and reviewing collaboration data. It’s very different in terms of workflows than, say, email data. Every email is a snapshot of a conversation, but every chat message stands alone. It’s important to work in a platform that can piece that together so you can read messages in context.”

Interestingly, firms that managed a higher volume of litigation were, if anything, less confident than those firms that managed a lower volume. Doug pointed out, “If you’re managing more matters, you have more opportunities to make mistakes—and as you make mistakes, you lose confidence (while learning what to do better the next time). I can understand why firms with 10-plus cases per month have seen challenges that firms with smaller litigation profiles haven’t.”

This confidence gap isn’t unexpected, Mike noted. “This is classic ediscovery—you have the known unknowns and then the unknown unknowns. It’s the evolving nature of ediscovery that there will always be things you don’t know.” That’s especially true as collaboration platforms regularly add new functions and capabilities, often faster than ediscovery professionals can adapt their processes.

So, what did our speakers offer for a take-home message?

A Few of Our Key Takeaways About Collaboration Data in Ediscovery

Mike emphasized the importance of project management and proactive planning. Continuing the earlier conversation, he explained, “We’re very much in an evolving market. There are still things we don’t know. Where will app development go next? What new data sources will there be to include in our ediscovery processes? Everything is continuously evolving, which leaves us with a lot of uncertainty—but proactive approaches will save the day.”

Doug advised, “I always encourage people, when you’re considering sources for potential ESI [electronically stored information], to think about what platforms you use to do your work. That might be email, a collaboration app, or any other platforms you use to generate work product. Whatever those tools are, those are discoverable sources of ESI.”

I also encourage you to check out the webinar, available on-demand to hear more of our discussion, and download a copy of the full survey results.

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