Chat applications are a fact of life now. Many employees in all sectors are using it to communicate and collaborate. The prevalence of this data type means that searching only standard document types such as emails is no longer sufficient if trying to unearth evidence in an investigation. The preservation, collection, review and production (to the authorities) of chat data pose unique challenges.
Through this series of blog posts, we will share some of our eDiscovery-related experiences of working with chat data and will provide tips on what to consider before and during an investigation.
Types of chat
Enterprise Chat and Collaboration Platforms
There are many chat platforms in use in workplaces today, each of which brings unique considerations. Some of the popular business chat tools that we encounter during investigations extend beyond basic chat functionality to include features such as collaboration, productivity tools and access to financial market data.
Application Chat Platforms
Other popular chat data platforms include applications on mobile devices that are often used both in professional and personal capacities, such as WhatsApp, Facebook Messenger, Apple iMessage, Telegram, Signal, Google Chat, WeChat and Snapchat. Many of these applications allow chats and calls (including video calls), with some platforms’ functionality extending beyond these traditional features. For example, WeChat features microblogging and payment transaction functionality.
While many people think of these applications as personal accounts, some of these applications, eg WhatsApp, Google Chat and WeChat, are also available for corporate-wide use akin to the enterprise platforms detailed above.
Some of these channels may be authorised by an employer, but some may be used unofficially by staff for business purposes despite not being authorised to do so. Businesses may still be able to access these communications in the context of an investigation. See: https://www.allenovery.com/en-gb/global/blogs/employment-talk/can-employers-refer-to-employees-whatsapp-messages-to-bring-misconduct-proceedings.
Issues with accessing historic chat messages
Investigations always require analysis of historic communications. The ability to do this with chat varies according to its archiving capabilities. These can often be customised by users. With WhatsApp, users can choose to synchronise chat data to Google Drive, export chats or delete chats without archiving. Some chat platforms incorporate ephemeral or disappearing messages, with the automatic deletion settings controlled by users. Signal has a setting which allows messages to be deleted from both senders’ and the receivers' devices based on a chosen timeframe of up to 4 weeks.
These features increase security and privacy for users, however can give rise to employment issues, as well as regulatory problems for businesses that are required to keep business communication records for certain periods of time. The technology also makes it more difficult for the chat providers to share data with the authorities and relies on the willingness of the employee to grant access to their data.
Regulators clamping down on use of chat messaging
The financial repercussions may sting. In December 2021 and September 2022, US regulators announced settlements with twelve financial institutions and assessed financial penalties totalling USD2 billion to resolve investigations by the SEC and CFTC into the institutions’ failure to monitor and preserve employees' text and messaging app business communications. Under the US DOJ’s recently revised Evaluation of Corporate Compliance Programs policy, prosecutors will not only look more closely at firms’ ability to produce data stored on third party messaging applications, but will also consider how usage policies are communicated to employees and whether such policies are consistently enforced. There has also been recent enforcement action in the UK.
Our next blog will outline practical advice for businesses on how to manage these risks.