Collaboration Tools Pose Challenges for E-Discovery

Corporate legal teams have become more dependent than ever on e-discovery. But the widespread adoption of business collaboration tools is complicating their use of this increasingly indispensable method of gathering and searching evidentiary data.

Since the start of the COVID-19 pandemic, corporate uptake of collaboration platforms like Microsoft Teams and Slack has gone into overdrive. The use of Teams in particular has soared to 250 million users worldwide,[1] but reliance on team-building tools has become ubiquitous across the board. To wit, Mimecast’s The State of Email Security 2021 report found that virtually all (98%) of the information technology and cybersecurity professionals surveyed work at companies that have adopted team-building and collaboration software.

At the same time, runaway growth in digital data and a more demanding legal and regulatory landscape have made e-discovery more vital than ever. More stringent laws, greater intervention by state and federal regulators, and soaring cybersecurity threats have all combined to increase the risks of legal and regulatory actions. The prospect of COVID-related lawsuits and the increase in remote work due to the pandemic have also heightened these risks and underlined the need for effective e-discovery solutions.

Accessing Collaboration Tools for E-Discovery

The massive adoption of Teams, Slack, Zoom and other collaborative applications in response to COVID is posing a major challenge to the use of e-discovery. Although electronically stored information contains potential evidence in a wide array of litigation, internal investigations and compliance matters, companies have for the most part been able to avoid producing collaborative data in court — so far. But, as the American Bar Association publication Law Technology Today puts it, “As courts become more familiar with collaborative applications, they will increasingly compel production from these sources.”[2]

Complying with their demands won’t be easy. The lack of standards means that each chat, collaboration and archiving tool uses a different data format, making comprehensive, cross-platform searches difficult or impossible. For example, Osterman Research’s report on Archiving and Data Protection for Microsoft Teams notes that, “When an eDiscovery search in Microsoft 365 is executed for content in Microsoft Teams, certain content is excluded from the search results, even if full native archiving and retention capabilities are used.”

Compounding the problem, applications like Teams have changed what it means to review information in context. A single Teams conversation, for instance, can include a multitude of text messages, documents, email threads, images, emojis, videos, calendar entries and more — all presented in an informal and sometimes stream-of-consciousness manner that defies easy analysis of motive and intent.

How to Expand E-Discovery Across Collaboration Tools

Legal and compliance officers can take several steps to begin to get their arms around this issue. The ABA suggests conducting an inventory of all the collaboration tools that their organization is currently using, including which business units are making use of which tools. Then, once this has been documented, it is important to establish where the data for each application actually resides, in the event it needs to be accessed. The data from even a single tool may be stored in multiple locations, and not all of those locations — such as those within the cloud — will be readily accessible.

Once the scope of the challenge has been determined, the legal department can begin to consider its search parameters. Should all potentially relevant data be collected as soon as it’s located, or should it be divvied up into more manageable segments? Should every version of a Teams or Google Docs document be gathered, or is it sufficient to collect only a few? These decisions will have significant implications that need to be understood. For example, reviewing every version of every document may involve gathering so much data as to make meaningful discovery impractical. But if only one or a limited number of versions are reviewed, which ones should be chosen, and will that be sufficient to satisfy the court?

Third-Party Solutions Improve Searchability

To achieve the degree of searchability that is warranted, the Osterman report recommends the use of third-party archiving solutions. This is especially the case when the organization in question has specific requirements that can only be met by the brawnier features that the more robust of these solutions provide. Chief among them:

• The ability to search across multiple collaboration platforms and content repositories without having to first migrate the data to a central repository.
• The ability to capture the full range of data types employed by the various applications.
• The efficiency inherent in using a single set of archival, e-discovery and compliance tools that work across most sources of collaborative data.
• The ability to employ fewer and more consistent data storage and retention policies, which reduces the risk that relevant data will be deleted or overlooked.

To quote the report: “Third-party archiving solutions are more likely to offer a unified approach to policy definition and enforcement that works across multiple data types from various products, services and solutions. Fewer policies that cover a broader remit of data types can be created and managed under such an approach, decreasing the likelihood that important data types are inadvertently missed.”

The Bottom Line

The growing and widespread use of collaboration tools like MS Teams has increased the complexity of conducting e-discovery, even as the volume of digital data with potential relevance to legal and compliance matters continues to soar. Resolving the many challenges posed will take time, but employing a third-party archiving and search solution can simplify the task and help ensure that the corporate legal team isn’t blindsided by a disclosure request.

[1] “Microsoft Teams hits 250 million monthly active user milestone,” ZDNet

[2] “Collaborative Data in Ediscovery: Six Steps to Take Now,” Law Technology Today