This fall, the team at Hanzo and the Association of E-Discovery Specialists (ACEDS) conducted a benchmark survey to learn how organizations were addressing what we broadly refer to as “collaboration data”—chat-based discussions and associated shared documents from platforms like Slack, Microsoft Teams, Google Chat, and more. We collected responses from a cross-section of different sizes and types of organizations, about half of which manage 10 or more ediscovery matters per month. Of the respondents, the majority—54 percent—were using Microsoft Teams. Around 70 percent described their collaboration tool as something they or their teams “can’t live without.”
In addition to releasing our findings in a report, we wanted to hear what other ediscovery experts thought. I had the great opportunity to moderate the webinar we co-hosted with ACEDS called, “The State of Collaboration Data and Corporate Readiness: Benchmark Survey Results.”. We heard from an outstanding panel well-versed in collaboration issues and learned which survey results caught their attention.
Here’s what they had to say.
INFORMATION GOVERNANCE FOR COLLABORATION DATA
Over 60 percent of our survey respondents stated that they already have organization-wide retention policies in place for their collaboration content—a statistic our panelists greeted with some surprise. Amy Sellars, Assistant General Counsel and Director of the Discovery Center of Excellence for Cardinal Health, remarked, “If this is true, it’s encouraging. But I wonder if that policy is simply ‘we save everything forever.’ When you say you have a policy, that’s not the same as having thoughtfully executed it.”
The Honorable Xavier Rodriguez, U.S. District Judge for the Western District of Texas, agreed. “People say ‘Of course we have a policy,’ but they haven’t done an exercise internally with their collaboration platforms to make sure they can implement whatever they’ve written in their policy.” Our final panelist, Mike Quartararo, the President of ACEDS, commented that “You need to have a handle on what data you have, where it is, and how you’re going to get to it.”
THE SCOPE OF DISCOVERY INCLUDES COLLABORATION DATA
Of course, you only need to preserve and produce data if it’s relevant to a discovery obligation—and our panelists were unified in their opinion that collaboration data is. Judge Rodriguez used a hypothetical to illustrate how collaboration data could be relevant to a dispute. “Suppose you have a team collaborating on building a widget. In the process, they’re having discussions about design, safety, and costs. If you have a likelihood of litigation about that widget, all of that conversation is ultimately going to be relevant.” Further, he noted, “You have a duty to preserve relevant information that’s proportional to the issues or claims in a matter, even if no one has asked for it yet. A request for production of documents in federal court necessarily includes electronically stored information.”
Sellars concurred, “I don’t think there’s any way you can categorically rule out these tools as not having discoverable information. You have to look at it just like you would with anything else.” She did observe that written collaboration data was a newer development. “Before the pandemic, we all worked in one room. We’d just turn our chairs to ask questions. Now, we collaborate using applications like Teams, so it’s in writing. That data might be privileged, but it also could definitely be relevant.”
WHAT’S CONCERNING ABOUT COLLABORATION DATA?
We asked our survey respondents to write in their answers for what they’re most worried about when it comes to managing collaboration data. Quartararo made a striking observation: “If you add it up, 80 percent of these respondents are concerned about something that falls under this umbrella of information governance. They’re looking at everything on the left side of the EDRM [Electronic Discovery Reference Model]—not at the processes that have to take place throughout the discovery lifecycle itself.”
Sellars admitted that she shares all of the respondents’ information governance concerns, but said she’s “mainly worried about the informality of communications. From GIFs to memes to emojis, these new formats are all so hard to review. What do they mean? How do you assess the context?” She also questioned whether people realized how much data their collaboration tools were creating. “Teams will keep up to 500 versions of a document, and it’s creating a new version every time someone looks at it. That’s a lot of data to wade through.”
KEY TAKEAWAYS FROM THE SURVEY
Our panelists emphasized the need for legal teams to fold collaboration data into their ediscovery workflows. “If the duty to preserve has been triggered, this data needs to be part of your litigation hold. We can talk about proportionality, but you need to start thinking about those things early,” Judge Rodriguez said. Quartararo expanded on that thought, noting that organizations need to understand where their data is, how they’re going to access it, and how they’re going to shepherd it through the discovery process.
Sellars advised, “Be prepared. Don’t take anything for granted. I’m a big believer in tabletop exercises where you lock your data down and see what you can do with it. I also think people should be ready to seek out a subject-matter expert if they’re not familiar with things like JSON file formats. Talk to other people and benchmark yourself against other legal departments. Learn how they’re tackling these issues and make sure your confidence is well-placed.”
If your organization is using Slack, how are you managing the volumes of collaboration data you’re creating? If you’ve explored Slack’s built-in information management tools, you’ve probably realized that they’re not designed for corporate ediscovery.
In case you missed it, both the full report with our survey results and the webinar are available on-demand at “The State of Collaboration Data and Corporate Readiness: Benchmark Survey Results.”
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