eDiscovery Daily Blog
Thoughts on the Legal Technology Implications of Dynamic Communication Practices
By Kenneth Jones, Tanenbaum Keale LLP
This article was originally published in LegalTech News on March 10, 2023.
E-discovery is a prime example of an area where legal technology/operations is seeing the challenges presented by legal professionals’ level of familiarity with computing options, particularly those technologies that form the dynamic changes in how professionals communicate.
A significant challenge in legal technology/operations is the level of familiarity with computing options—both established and forward-thinking applications and tools—especially those relating to the dynamic changes in how professionals communicate using the vast array of technologies present in our lives.
E-discovery is one example of this. As many try to wrap their arms around emerging technology areas which are all the rage (Chap GPT, artificial intelligence, etc.), it tends to mask similar long-standing challenges, such as the adoption of predictive coding or records management programs, which reduce overall eDiscovery cost and risk.
But historical problems do not prevent time from inexorably marching on as it relates to human communication. The Pony Express, telegraph machines, telephones, U.S. Mail and countless other mechanisms Exit Stage Left as technology drives change.
Specifically, a wide collection of various “new” forms of communications (Slack, Teams Chat, SMS, Whatsapp, other instant messaging, video content like Zoom/Teams calls, content stored in workflow/task management platforms applications like Github, ServiceNow, Salesforce and others) are increasing leading players in the business connectivity ecosystem.
Rick Clark, Sr. Director of Sales Enablement and Strategy for CloudNine and Co-Founder of the Masters Conference, notes the increased complexity of legal communication processes: “I remember when email created a major shift in business communications and necessitated a new process in legal discovery. Now, I see custodians starting conversations in email, switching to Microsoft Teams, then to WhatsApp and ending in a phone call. Tracking that conversation as evidence demands approaches designed with multi-platform interoperability in mind.”
But what certainly is new are the myriad issues facing law firms and legal on how to deal with “new communications,” These considerations can perhaps be grouped in three buckets:
- Essential Services Elements
- Policy Ramifications/Opportunities
- Legal Service Opportunities
Essential Services Elements—Basic E-Discovery Considerations
The dynamic nature of legal work processes, and the communications mechanisms driven by this, create unique litigation hold and e-discovery challenges. For example, are mechanisms in place to preserve Slack or Microsoft Teams chat threads? Are text messages sent by employees cataloged? Are threads in client portals or workspaces retained in a retrievable manner?
Issues here, in many ways, are fundamentally different from those in more established communications methods. One example is data categorization, also known as the metadata describing an element of data. In email (hopefully), users are filing emails into folders. In document management systems, it’s generally required that documents are placed into workspaces relating to clients or matters.
Classification is not limited to email and documents, of course. “New communications” often feature different types of taxonomies. Issue tagging is one. As is the actual type of metadata (application, embedded, file system, user added, etc.) which are identifiable characteristics of communications.
Clark also notes “Personal and work related communications often tend to meld together on an employee’s device. Significantly, many seemingly non-business-related applications are increasingly in play. These include Facebook Accounts, Instagram, YouTube Channel, TikTok and, importantly, Geolocation data.”
It is generally understood that the legal profession has developed generally accepted procedures driven by litigation hold and other regulatory requirements for document and email data/metadata. But it is not surprising that emerging communications tech is still reacting to respond. This is of course common to almost all areas of emerging tech (e.g. ethical issues in the use of Artificial Intelligence, lack of governance in cryptocurrency, etc. being other strong examples).
So, what law firms need to do within the e-discovery space to develop capabilities to service their clients in the traditional areas (identification, preservation, collection, processing, review and production) within these new communications areas. Here are some pointers.
Utilize a single or fewer platforms which can ingest the various modern data sources, reducing issues relating with accessing data in silos.
- Strive for simplicity and speed. The easier it is to process and work with these new data types, the more likely this data will be intelligently and appropriately processed.
- Be very mindful of security. Walls and controls which exist in core applications (restricted access by practice groups or clients within a DMS for example) should be honored when working with and processing data sources like SMS, Slack, IM, etc. also.
Policy Ramifications/Opportunities—Legal Operations
Not surprisingly, law firms and corporate legal departments are now driven to develop guidelines on what type of communication should and should not be permitted (and supported). Why?
One reason is that, unfortunately, despite employee education programs and the constant stream of information in the public domain about security, a small number of maverick employees or business partners still will prioritize completing a task over reputational welfare or risk.
But that’s not the only consideration—other rationale for protective tools to be leveraged is present. For example, there are often legitimate needs to deploy tools enabling extra-sensitive information—think M&A, medical reports, financial/banking data—to flow in a more secure manner. Data flows via these channels also must be accounted for and included in collections/analysis, despite the capability for example of employees to “burn” messages sent via these ultra-secure platforms.
But technology-based communications mechanisms and feature sets are not the only elements the legal profession should consider with respect to modern communication. Applying legally accepted principles relating to the retention of information, supporting the ability to retain subsets of data as required by litigation holds, and executing this required governance against apps and data outside the purview of a law firm’s managed application portfolio is a significant challenge.
So how does one tackle this? Clark notes, “Ensuring procedures to properly retain ‘approved communications’ from within messaging apps/tools—and attempting to prohibit unauthorized employee deletion of the same—is crucial. As is the capability to efficiently ingest and analyze this data when needed.”
Legal Service Opportunities—Business Development
Once procedural elements of coping with modern communications within the e-discovery realm are in place, one can consider applying these capabilities to drive revenue growth.
Opportunities are present for law firms to apply this expertise to their service model. For example, many clients may reasonably benefit from repurposing of this work—e.g., legal counsel to develop internal guidelines governing areas like litigation holds, technology use guidelines, retention policies, etc. for modern communications.
To cite one element of this challenge, today, many organizations block email applications like Gmail or Hotmail from their browser and via written policy. Arguably, the same approach might be applied to tools like Whatapp, TikTok, or Instagram which seem fairly unrelated to work. And, even for “approved” chat mechanisms (like Teams, Git, Slack, ServiceNow, Salesforce and others), retention periods, the execution of litigation holds and development of an efficient ingestion “on ramp” into common e-discovery platforms is necessary.
Dealing with all these new data types and issues is not easy. But don’t sweep it under the rug. Without a doubt, modern communications will become increasingly more important within the e-discovery discipline—if not the dominant consideration—in the not-too-distant future.
Kenneth Jones serves as Chief Operating Officer of Xerdict Group LLC, a wholly owned technology subsidiary of Tanenbaum Keale LLP, which provides sophisticated, SaaS-based legal matter management systems and other use cases applied to automate common legal workflows.
CloudNine empowers legal, information technology, and business professionals with eDiscovery automation software and professional services that simplify litigation, investigations, and audits for law firms and corporations.