After a couple of years away from the full in-person conference experience, the team at Hanzo was so excited to be back at Legalweek earlier this month. It was wonderful to feel that things are beginning to return to some semblance of “normal.” As always, we left inspired by new ideas, new conversations, and new connections. 

I was heartened to hear—both in presentations and among colleagues at networking sessions—some of the conversations we’ve been having here at Hanzo for quite some time. One recurring theme from Legalweek concerned the challenges of ediscovery with modern collaboration data. A number of sessions discussed the burgeoning use of collaboration applications and the ediscovery challenges and risks that follow. 

I’m glad to see this growing recognition that the collaboration data generated by applications like Slack, Jira, Trello, Miro, and more are vital to resolving litigation matters and determining the facts in investigations. That awareness is causing more companies to grapple with questions about managing the data that their collaboration tools generate. And there are a lot of questions! 

Here are the highlights of some of the conversations I heard at Legalweek. 

Collaboration Data Is Here to Stay—and It’s Often Relevant to Ediscovery and Investigations

Several factors have driven the recent rise in collaboration data. First, of course, there was the widespread shift to remote work for knowledge workers worldwide and the accompanying need for workers to have communication tools that enabled ongoing connection despite physical separation. Technological advancements in recent years—predating the pandemic—have also spurred the expansion of tools, and in doing so fundamentally changed how and where we communicate in the business setting.  It’s no longer just email or messaging platforms, as communication capabilities become integrated into ticketing systems, project management tools, HR systems, and practically every new SaaS application within the enterprise. The capabilities of those tools, and their interconnections, also continue to expand, creating new challenges for information management. 

At the same time, litigants have recognized that these emerging tools may generate discoverable data. Moreover, organizations have realized that these applications often contain data that can help them get to the bottom of their investigatory inquiries,  and, in doing so, help mitigate risk. 

Of course, just because data might be relevant or helpful doesn’t mean it’s readily accessible or straightforward. How do organizations identify, preserve, collect, and produce collaboration data for ediscovery or investigations? How do we define a custodian, when entire teams may have access to a document or communication channel?  How can legal professionals determine a fair and reasonable scope of discovery when traditional ESI protocols no longer apply?

Defining the Scope of Collaboration Data Is Complicated

When discrete tools like email were the primary data source for ediscovery, we negotiated scope first in terms of data sources, custodians, and date ranges. So, to begin with, we might preserve or collect John’s mailbox with emails from January 2020 to May 2020. We’d refine that scope in terms of topics, themes, and perhaps keywords. Now we’re not looking at all of John’s emails for five months; we’re only looking at his emails within that time window that contains a keyword or relates to a topic. 

Defining scope was relatively easy because an email message generally includes all of the information needed to determine its relevance and importance (and the content is static once sent!) Ediscovery teams can see who an email is from, whom it’s addressed to, what it relates to, and how the conversation unfolds over time. 

With collaboration tools, though, messages are no longer self-contained conversations. How, then, do we search through that data for important information? Scoping collaboration data is a “Goldilocks” problem that presents issues on both sides. 

First, there’s how to scope an inquiry that captures enough data when an individual chat message or comment contains only a tiny sliver of related information. The message itself doesn’t tell you everything about who was involved in a conversation, how the conversation began, or how many topics—never mind what topics—that conversation encompassed. 

Context, as we’ve said many times, is crucial. Within Slack, we often solve that problem by considering the “direct hit” messages that include keywords or key concepts and a set number of messages or a defined amount of time before and after those direct hits. 

But context is only one side of the coin. It’s equally easy to create an overbroad scope with collaboration data because collaboration apps generate so much differing data. A Slack conversation could include links to an Outlook calendar event, a Google document, a Helpdesk ticket, or a Miro project board. Those linked pieces of information are referred to as modern attachments—and they pose some of the trickiest questions for defining scope. 

The Modern Attachments of Collaboration Platforms Test Our Definitions of Scope 

The judge’s debate that kicked off the last day of Legalweek discussed the problem of modern attachments head-on. In the same way, we are starting the debate over “modern attachments” email, are links to integrated data sources embedded within a chat message also relevant to the scope of a matter? To answer that question, ediscovery teams need to access each attachment to determine what it is and what it’s about. Is there a way to automate that process? Or does identifying relevance mean clicking through each link one at a time?

There’s another question that’s hidden a layer deeper: that of versioning. Say you’re looking at an Asana project related to an investigatory inquiry or an ediscovery matter. That project references and links to a document stored in a document repository like Google Drive. But is the version you see today, while you’re evaluating the issue, the same version that existed then when it was initially linked? If not, how do you find that version?  

It’s a compelling question, to be sure, and one that the legal industry hasn’t found a complete answer for yet. 

One parting thought: despite the complexities of collaboration data, organizations must determine the scope of an inquiry based on the relevance and importance of data, not on their technical ability to find, search, or export that data. In other words, you should be able to confidently manage whatever collaboration data your organization has that would help to resolve an issue, rather than restricting your inquiry to traditional data sources because you don’t know how to access or manipulate a particular data source. 

I loved hearing these questions and conversations at Legalweek. They’re exactly the types of questions that Hanzo has been asking—and answering—for years.

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