The immediate challenge that often springs to mind related to antitrust Second Requests is managing vast volumes of data under stringent deadlines. These factors transform Second Requests into intense, high-stress endeavors. The pressure rises as responding organizations increasingly need to deal with the preservation, collection, and production of unique data types.

Modern attachments and ephemeral data, already problematic in various eDiscovery contexts, present unique challenges during Second Requests due to aggressive, inflexible timeframes and regulatory demands. Thanks to these deadlines, there’s little opportunity to develop alternative workflows or employ new solutions to handle these data types.

To help you navigate these demands, we’ll outline best practices that have helped our clients overcome challenges posed by modern attachments and ephemeral data in Second Requests.

Preserving and collecting cloud attachments

We have seen many Second Requests already in 2024 specifying the need for the collection and production of cloud attachments. This requirement introduces significant hurdles during preservation and collection that can change depending on the cloud platform that’s involved. For entities utilizing specific licenses in Microsoft 365, preservation and collection need to be performed using the Purview Premium eDiscovery tool. Such a stipulation can pose a considerable challenge if the organization lacks the appropriate M365 licensing.

“Those organizations (and the law firms representing them) absolutely need to have a strategy in place to address data retrieval from M365 to ensure they are able to meet the timelines and regulatory requirements for data collection in Second Requests.” — John Collins, Executive Director of Information Governance at Lighthouse.

There are legal precedents that provide grounds for counsel to contest modern attachment mandates based on proportionality considerations. It is crucial for eDiscovery service providers and law firms to understand these legal decisions and know when (and how) they can be leveraged effectively against onerous modern attachment requirements by regulators in Second Requests.

For companies employing M365, it is imperative to establish a robust strategy for data retrieval well in advance to meet the deadlines and regulatory demands of Second Requests. This strategy should include:

• Knowledge of the organization’s M365 license and what the associated preservation and collection implications are.
• Someone on the team managing the Second Request—from inside the organization, outside counsel, eDiscovery counsel, or an eDiscovery provider—who has the necessary expertise and skill to understand how to preserve and collect data in M365.
• A clear understanding of how the collected data will be processed during subsequent search, review, and production phases, taking into account ongoing changes in the M365 platform, the evolving M365 ecosystem of the client, and the latest eDiscovery standards governing M365 data.

Ephemeral data and regulatory challenges

Over the last few years, we’ve witnessed increased regulatory scrutiny regarding how companies manage communication data. This scrutiny encompasses both supported applications (e.g., M365, Google Workspace, Slack) and unsupported third-party apps that may be installed on company-provided or policy-managed personal devices. It is now established that companies must preserve relevant communication data if it pertains to an investigation or litigation and that failure to do so would lead to severe repercussions.

Recent trends indicate a pivot in the preservation specifications for electronically stored information by the FTC and DOJ, with a growing emphasis on the linkage of shared or cloud attachments. Microsoft has introduced mechanisms that allow for the retention, preservation, collection, and export of shared document versions cited in communications. However, understanding these processes and their implications is vital for legal teams and organizations to navigate these challenges successfully.

Adapting to changing Second Request requirements

Modern attachments and ephemeral data present significant challenges in the context of Second Requests, requiring specialized knowledge and proactive strategies to manage them effectively. As regulatory frameworks evolve and technology advances, the approaches to handling these data types must also be adapted. By staying informed of legal precedents, technological capabilities, and industry best practices, legal professionals can better equip themselves to tackle these complex challenges in eDiscovery.

This forward-looking perspective not only aids in compliance but also enhances the efficiency and efficacy of managing modern attachments and ephemeral data under the pressing conditions of Second Requests.

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