Hanzo hosted the CLE, "A Brave New World — Mapping Your Course for Managing Discovery With Collaboration Data," during the first virtual session of Legalweek(year) featuring corporate ediscovery experts, Andrew Amoranto, Twitter, Stacey Blaustein, IBM, and Graham Rollins, Capital One who shared their insights regarding ediscovery with collaboration data. This recap shares the discussion of the issues collaboration data presents discovery response and suggested tips for corporate readiness for managing data and mitigating risk with emerging data sources.
INTRODUCTION
The pandemic effects on business have altered life as we know it and will have a lasting impact. Now everything must be dealt with virtually, whether you're talking about significant industry conferences like Legalweek(year), business meetings, or even daily collaboration with your team. The show must go on as they say.
In the quest for productivity, collaboration platforms have logically seen unprecedented growth over these past 12 months. However, we believe this trend is here to stay beyond the pandemic because companies see a notable improvement in employee satisfaction and productivity. An estimated 20-30 percent productivity increase according to McKinsey's digital workplace stats. As these solutions shift conversations from email into new conversation streams and collaboration platforms, mission-critical corporate data shifts as well. However, many of these emerging technologies were not built with corporate discovery in mind, bearing the question of defensibly governing this data and meeting an organization's duty to preserve it.
Digging into and unpacking what this reality means for corporate legal professionals was at the forefront of our planning the CLE that Hanzo hosted last week during Legalweek(year). We assembled a distinguished panel of corporate experts, including Andrew Amoranto, Senior Paralegal Manager, Litigation at Twitter, Stacey Blaustein, Counsel at IBM, and Graham Rollins, Sr. Manager, Sr. Counsel at Capital One. These leading minds manage various aspects of ediscovery and information governance, including emerging collaboration applications.
I had the great opportunity to moderate the discussion where these leaders shared their insights regarding ediscovery and information governance with data from modern collaboration applications. We dove into how organizations look at collaboration data, its discoverability, the challenges and complexities collaboration data present and why, and strategies for data governance, security, privacy, and retention, and what needs to change in our approach ediscovery.
WHAT ARE COLLABORATION APPLICATIONS, AND WHAT DO THEY ALLOW YOU TO DO
Before we dove into the challenges, we started with a little background on collaboration's broader definition. By definition, collaboration software is an application designed to help people working on a common task attain their goals. Collaboration software allows two or more remote users to work on a task or project jointly. It enables them to do everything from communication and messaging to sharing and managing files, and documents, among other data types and systems. Some examples of collaboration applications include Slack, Microsoft Office 365, Workplace by Facebook, Zoom, Google Workspace, Jira, Confluence, Asana, and Trello, to name a few.
EDISCOVERY CHALLENGES OF COLLABORATION CONTENT
COLLABORATION CONTENT IS DISCOVERABLE BUT NOT YET A PRIORITY
Interestingly, one of the significant challenges of collaboration content is that despite people realizing it is discoverable, corporate legal teams haven't quite put it on the front burner yet.
We looked at data from the 2020 Collaboration Data Benchmark Survey, conducted by Hanzo and The Association of Certified Ediscovery Specialists (ACEDS). We learned that 77% of respondents reported not needing to respond (yet) to discovery requests for collaboration content. However, nearly 60% expect this to change in the coming 12 months (expecting" some" to "significant" increase).
Stacey Blaustein found it surprising that so many reported that collaboration content hadn't been a part of their typical productions. She emphasized,
"Collaboration content is absolutely discoverable. Any electronic information and data, records, and communications that are relevant to the claims and defense in litigation are completely game for discovery."
She also pointed to case law on the discoverability of collaboration data. She added that the courts will hold the requirements for this data at the same levels as emails and hold parties accountable for this content.
For example, the courts required Slack content and ephemeral messages to be preserved and produced in Waymo LLC v Uber Technologies 2018 WL 646, 701 (Northern District of California January 30, 2018) and Calendar Research LLC v StubHub, 2019 WL 1581406 (CD Cal. March 14, 2019). In West Publishing Corp v Legal Ease Solutions LLC, 2019 WL 8014512 at *8 (D Minn November 22, 2019) Slack was required to be produced in ediscovery but both parties split the costs.
Since case law points to the need to include collaboration in scope, corporate legal teams need to prepare for the inevitable need to respond to a discovery request. We moved on to look at some of the challenges this data presents and why it's a good idea to get ready now.
MOST COLLABORATION PLATFORMS ARE NOT BUILT FOR EDISCOVERY
Collaboration platforms are built for collaboration, as they should be, to make it easy to work with teammates. Unsurprisingly, they were not conceived with the intricacies of the discovery process in mind. Unfortunately, that makes folding in the data from these applications tricky.
Andrew Amoranto commented that collaboration platforms have enjoyed broad adoption and even greater use as tools add more in-depth collaboration functions. These tools have not kept up with functionality to meet those in the legal profession who need to get data out for ediscovery. He broke down the challenges that discovery pros face into four key areas.
First, there are the challenges of identification, such as knowing what apps are in use, who is using them, and what data exists that might be relevant to a discovery obligation.
Then you face the challenges of preservation and collection, which can be exacerbated depending on the tool. For example, can content be reliably preserved in place, or do you need to collect-to-preserve, such as with Slack? On the collection side, you can even find that tools don't have suitable mechanisms to export the data in a reviewable format—requiring you to use third-party tools like Hanzo.
Finally, you have the challenges of review for early case assessment, where dealing with unwieldy JSON formats and handling the massive volume of data complicates the process. These challenges also compound the need to view communication streams in context so you can make sense of the data and understand what is responsive or not.
We went on to explore the flip side of the issue, complicating the discovery of collaboration data.
MOST EDISCOVERY TOOLS ARE NOT BUILT FOR COLLABORATION CONTENT
Graham Rollins noted that "most ediscovery tools are built for the email and office documents paradigm. Yet both the content and the format of collaboration tools are substantially different." He went on to explain why collaboration content is more challenging than with traditional email and documents.
He outlined that collaboration content has some common characteristics that complicate discovery.
Communication Style: The style of communication is less formal than email, free-form, and abbreviated. You may have a lot of work and non-work communication mingled throughout the various communication channels. Messaging on collaboration tools is where users let their guard down, and contextual—meaning is often inferred from the communication context.
Content Complexity: There are massive volumes of information with a dynamic changing nature. For example, this data can be edited and deleted, and there are threads, versioning and change history on documents. All of this data is tough to access and review using standard tools.
Data Complexity: The complexity is often higher when you're dealing with instant messaging, bulletin boards, embedded or linked documents, or even links to other applications, dynamic feeds from other applications, files, images, videos, links to external applications like Youtube or Twitter links. When you collect that, you're not going to get all of that content. You're going to get the slack message and maybe some hyperlinks. How you represent all of that and what constitutes a document are all challenges. Even how you render a conversation in Slack is not apparent, given what you get automatically is in JSON format.
Custody & Control: Because ownership and repositories are shared, the very definition of a "custodian" and "data location" needs to be re-thought, especially since existing tools are built around data being controlled by one custodian as opposed to a shared Slack channel or document.
STRATEGIES FOR DATA GOVERNANCE, SECURITY, PRIVACY, AND RETENTION
Of course, company culture and policy impacts the risk as well. Blaustein mentioned that it is not uncommon for Slack to be the method of communication for common interest groups and engagement, including non-work related topics like BLM, social justice, and other political causes.
IMPROVE ORGANIZATIONAL READINESS
Blaustein noted, to start, that it is a good idea to work with the CIO to map out what applications are commonly in use because those are the ones that will be most needed for discovery. She detailed that you need to know what the tools are, what they encompass, and how they are being used.
You also need to understand any enterprise-wide retention periods, customized retention, and preservation. Additionally, you want to know who is operating the tools, who has custody and control over the information, and who can get information out. That will help you get the lay of the land and know what you need to manage and applications for which you need to develop use policies. She also suggested that you use the tools yourself so that you know more about them.
Amoranto added that it's critical to be a part of the communication change of tool updates to be aware of the changes and how they could affect your access to the data. This information could also impact the documentation of your processes in dealing with this data. Andrew mentioned the importance of taking your experience with these platforms and reviewing and updating existing acceptable use policies and guidelines for application use. It's an excellent opportunity to be a resource for the entire company.
Rollins suggested making sure that legal and ediscovery are stakeholders in the information governance process and look at it from a holistic view. He noted the interoperability of multiple collaboration systems connected and the importance of being aware of their respective retention periods. He also suggested implementing a more consistent information governance strategy enterprise-wide and communicating it throughout the company to avoid the headache of encountering links to information that had not been preserved due to differing retention cycles.
Once you have your policies ready to go, it's the right time to invest in organizational education and training so that employees across the organization understand the policies and why they are essential. Two other important points for mitigating risk are evaluating and implementing retention management (along with preservation) so that you are balancing your information governance with your duty to preserve collaboration data in the scope of discovery.
Finally, it may seem obvious, but legal needs to partner with IT and other departments to establish a process for commissioning and decommissioning applications. In the future, legal can protect the company as a partner with IT in managing the company data.
WHAT NEEDS TO CHANGE IN OUR APPROACH TO EDISCOVERY
All panelists agreed that special attention should be paid to improving ediscovery response, investigations, privacy, and cybersecurity when managing the data from emerging collaboration applications.
Revise ESI protocols and playbooks to include the technology your company is using. Describe how collaboration tools are being used and typical content they contain, as well as what capabilities exist for preservation and collection.
Update and maintain your content mappings. For example, Blaustein shared that she maps content on an annual basis to the officially sanctioned platforms that are used on a massive scale. She shared that it serves as an instrumental roadmap for how your systems work, complete with preservation and retention policies, who owns the information, and information on if they are backed up? There's always going to be questions, so if you have this information documented for the primarily used platforms, it becomes a foundational piece for your organization and is a valuable educational resource for your outside counsel, the court, and regulators.
Amoranto suggested updating ediscovery templates to include questions about collaborative environments and the different types of data they yield (legal hold notices, custodian interviews, RFPs). He said it's essential to educate and invest in people, processes, and technologies for dealing with collaboration content because then you can start improving your readiness before you've even implemented the tool.
Educating your legal teams and outside counsel on collaboration platforms was a point all panelists addressed. Rollins mentioned when educating outside counsel that they understand the systems in place and how to get data out of them to help them negotiate scope and collect from collaboration platforms. He added that there is also the nitty-gritty of negotiating the logistics of discovery and the production format, which depends on the tool you are using. They have to understand what is available and even possible to produce because it is different from standard email and document production.
KEY TAKEAWAYS
I then asked the panelists to share one final takeaway. Here is what they said.
Andrew Amoranto, Senior Paralegal Manager, Litigation at Twitter
"A collaboration tool is not just one specific tool. It is a mindset, a culture, and a way businesses are getting things done and how things are changing. Because of that, our solutions and our responses should not be legal saying no, but rather demonstrate that legal is a collaborator with all other parts of the business."
Stacey Blaustein, Counsel at IBM
"Many people think these tools were used because of the pandemic. But these tools are here to stay. People like working together and projects are team-based and collaborative. Understand what they are working on and learn how they work and be a teammate. You can take the lead and set policies that are informative and consider what is needed for your organization. Consider whether it is a customized retention policy, balancing between data privacy and a business or legal need, and document and educate the team on these policies to help your organization prepare."
Graham Rollins, Sr. Manager, Sr. Counsel at Capital One
"The high-level aspects of the ediscovery process aren't any different when it comes to collaboration data. You're still talking about proportionality and the burden of making productions. You're still meeting and conferring with the other side about how to get information in a reasonably cost-effective fashion. What changes with collaboration is the technical logistics. You can't use the same set of processes for email, word docs, and excel files to do Slack, G Suite, and Teams. At the detail, they all have their own technical needs to make sure you can go from the collaboration tools content to a reasonably usable production. You should still enter your ediscovery discussion about a case with your usual hats to protect privilege and produce relevant information. Nevertheless, you need to re-think the nitty-gritty logistical steps you are going to take to get there. That is where the devil is with this stuff is handling those and not relying on the same assumptions you did with traditional sources."
LEARN MORE
You can access the on-demand recording of this webinar by logging in to Legalweek.
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