eDiscovery Daily Blog

• October 28, 2021

Since Halloween is approaching, it’s time to reflect on a scary part of the discovery process: handling communication applications. As a newer form of digital evidence, communication apps can be a legal team’s worst nightmare. Ephemeral messaging apps like Wickr and Signal make conversations disappear like ghosts in the night. Slack and Microsoft Teams have sunk their teeth into the communications of most corporations. Social media apps have entranced us with a spell, prompting our fingers to type a new DM or tweet every other hour. It’s easy to view these applications as monsters in the discovery process. They have revolutionized the world of e-discovery, expanding it to more than just emails and electronic files.  Whether you love them or hate them, communication apps aren’t going anywhere. In fact, their popularity is only rising. Approximately 2.5 billion people use at least one messaging app on their mobile devices. This number is expected to reach 3 billion by the end of next year. [1] Here’s another chilling statistic: in 2020, 41 million application messages were sent every minute. The volume of communication app data is frighteningly large, but its relevance is undeniable. Regardless of case type, (criminal, personal injury, defamation, etc.) litigants should consider its production. Within each channel and group chat lies a plethora of information that could make or break a case. Still afraid? Here’s a list of challenges and solutions for managing communication applications.

Understanding the missing context:

Messages sent on communication applications are often short and sent with little context. Bits and pieces of conversations might be spread out across multiple platforms and group chats. When handling a case, legal teams should identify all relevant communication platforms to connect the missing dots. Litigants should also consider deriving context from atypical sources such as emojis, liked messages, images, and GIFS. [2] These humorous icons and features can reflect the sender’s tone, a difficult thing to gather over text. Remember, images and emojis aren’t supported in all native file types, so it’s important to find an eDiscovery provider that will reconstruct the conversations. [3]

Managing large volumes of data:

Producing and reviewing voluminous data is stressful, time-consuming, and expensive. By creating comprehensive retention policies, businesses can proactively determine which data types and channels should be preserved. Within the policies, companies should outline the procedures for labeling, storing, and deleting records. [4] The deletion of unneeded data lowers the risk of massive data accumulation.

Remembering each application’s retention policies:

Applications like Slack and Microsoft Teams will retain all messages unless configured otherwise. Similarly, Facebook, Instagram, and Messenger store data until the account has been deleted. [5] If the account owner deletes or unsends a message, the data will still show on the recipient’s phone. Some of these platforms contain “Recently Deleted” features that make recovery much easier. The policies for collaboration and social media applications are rather straightforward. Ephemeral messaging apps are a bit different; however, the auto-deletion features can be adjusted to the user’s discretion. Auto-deletion settings should be turned off during or in anticipation of litigation.

[1] Damjan Jugovic Spajic, “Text, Don’t Call: Messaging Apps Statistics for 2020,” Komando Tech, December 11, 2019.

[2] Erin Tomine, “Chat Messages and eDiscovery: How to Ease the Burden and Get the Full Picture,” Conduent, July 7, 2021.

[3] Matthew Verga, “Discovery from Slack: It’s Complicated,” Xact Data Discovery, June 19, 2020.

[4] Law Offices of Salar Atrizadeh, “Electronic Discovery and Data Retention Policies,” Internet Lawyer Blog, May 18, 2020.

[5] “Data Policy,” Instagram Help Center, 2021.