Collaboration Apps Make E-Discovery More Difficult

Businesses, attorneys face challenges in building legal cases based on group messages and apps

By Rosemarie Lally, J.D. May 19, 2017
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​The use of group messaging and online collaboration apps is proliferating as businesses strive to streamline intracompany communication and improve team productivity. While these tools can facilitate team cohesion, they can be used inappropriately—such as to sexually harass a colleague.

And when a lawsuit alleges employee misbehavior, the inability of employers to fully see and preserve all chat app messages can make discovery difficult, time-consuming and incredibly expensive, according to Andy Wilson, CEO and co-founder of San Francisco-based Logikcull, a legal management software provider that specializes in e-discovery. E-discovery is the process in which electronic data is identified and examined as evidence in legal cases.

Collaboration apps, like the one former Uber employee Susan Fowler alleges a colleague used to harass her earlier this year, can be hard to crack into.

"Apps provide public and private channels, making [recovery] messages more difficult for employers," said Ansel Halliburton, an associate with Kronenberger Rosenfeld and a former legal analytics software engineer.

"Private channels can be created and destroyed in a discreet, encrypted way," Wilson said. "Some financial traders are currently using encrypted apps, such as Signal, and driving federal regulators crazy." In addition, employees can—and do—use their own unsanctioned instant messaging apps, he said.

Wayward Communications

Larger businesses are more likely to have IT departments with savvy administrators that are able to lock down private channels to prevent abuse, but many smaller companies may be unaware of the problem, Wilson said. "This is so new that not many people know how to control it."

This means such apps can be generating huge streams of data that may be completely unknown to employers, which makes the prospect of discovery hard. Some apps use the cloud, and data is stored on remote servers not owned by the company, instead of on a local computer hard drive, "so the data isn't even in the employer's control," Halliburton noted.

The difficulty of retaining chat messages also complicates e-discovery, Halliburton said. An app's message-retention function often varies with the level of service. For example, free services generally don't offer message retention at all, while middle-tier services often provide unlimited message retention. Frequently only the highest tier archives messages indefinitely and makes them available for export, he said.

Companies in regulated industries, which must keep records for seven years, will likely have to contract for the highest tier of service to preserve all relevant communication, Halliburton said.

To further complicate matters, some apps automatically encrypt all messages and data, so that even the app provider doesn't know what any messages contain, he said.

Because collaboration apps generate more data than e-mail because people converse on apps more than by e-mail, finding what's relevant during discovery is more challenging, Halliburton said.

If a company decides that it wants to implement chat messaging, Wilson said, it must clearly lay out the rules of engagement from the start, particularly for new employees:

Prioritize communication options. Coach employees on when they should use an app or another means of communication, such as e-mail or a meeting.

Make clear that nothing is private. General corporate communication policy holds that all work communications can be monitored; this policy is good for chat threads, too.

Simplify the rules. Don't distribute a long, complex policy that no one is going to read or understand. Simplify company policy and instructions on chat use.

Discuss when to use chat and what to put—or not put—into a message. "We see this over and over again—people sending inappropriate e-mails that come to light and get them and their employers in big trouble," Wilson said. "I tell people to use the billboard test in messaging: If your chat message were posted to a billboard that your mom drove by, what would she think?"

Train during orientation. "From the first day, set your expectations and enforce them. Don't just check the box; really work with your new employees so they understand what is expected."

 

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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