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All new communications and collaboration technologies come with their own unique set of capabilities to create, modify, preserve and share content. The growing business uses of social media, mobile apps, text messages and new collaboration platforms are posing fresh challenges for e-discovery.

Several recent legal cases help to illustrate this changing landscape. For instance, NFL player Mychal Kendricks pleaded guilty and faced a potential 25-year sentence based on an insider trading scheme that was uncovered from a series of text messages and FaceTime posts.

In Commonwealth v. Mangel, the Superior Court of Pennsylvania disallowed into evidence a social media post presented by the prosecution as a simple screen shot. And in People v. Price, a New York State Court of Appeals made it clear that there is no strict rule or formula that must be met in order to have social media communications authenticated in order to be admitted into evidence.

To address such concerns, firms must adopt a new type of next-generation E-Discovery Playbook. In fact, in their recently published “The Sedona Conference Primer on Social Media”, the e-discovery thought leading group stated that “the dynamic nature of social media mandates that parties be proactive in addressing preservation.”

So, what does a next-generation E-Discovery Playbook consist of? For starters, consider the complexity of mapping users to 30 to 40 different content sources, some of which that rely upon screen and buddy names, Twitter handles, and other identifiers that don't easily map to your company's corporate directory structure. Clearly, you can't map this universe in real-time.

Next-gen playbooks need to rethink the task of data mapping into “identity mapping.” Firms should look to automate the creation and ongoing mapping of identities from users to all the content sources that they have been authorized to conduct business over. In this way, firms can be fully prepared whenever each person appears on a custodian list.

Collecting and Preserving New Content Sources in Their Native Formats

Every new content source is unique, requiring its own method of collection. Social media, text messaging, mobile applications and collaborative content from Microsoft Teams and Slack all behave differently.

Some sources have full APIs, while others have none. Some can be captured by third-party technologies or forensic services, while others require a time-consuming service request to retrieve historical content, such as with mobile carriers. The objective in collection should always to be drive as close to the native source as possible, as Sedona notes “content produced using a provider's API has routinely been admitted into evidence at trial and is considered a best practice.”

Another challenge involves the need for review to recognize native context and metadata. Most legal review tools in use today were designed when the predominant form of electronically stored information (ESI) was email and scanned documents. That world was linear and static, with documents moving ahead in a straightforward chronological thread.

Unfortunately, today's social and collaborative technologies are dynamic, context-sensitive, and multi-dimensional. Think of a conversation happening over a series of tweets, or a chat room where individuals join, leave, edit content and interact via video, whiteboards, or voice. Don't forget to include some added emotional context in the form of emojis.

None of those active, interactive elements translate well into a static review environment. In fact, most review platforms continue to use conversational threading to figure out who said what, who participated in an event, or who may have taken an action that led to the issue in question. As Sedona notes, existing tools may be sufficient when e-discovery is focused on static message content, but other technologies should be considered when needing to address rich, dynamic interactive content.

Delivering Metadata and Conversational Content for Production

E-discovery throughput needs to be completely redefined. Firms have traditionally evaluated the performance of an e-discovery platform and the efficiency of workflows in terms of ingestion and export rates. However, the reality of new content sources has fundamentally changed this equation.

Metadata and event information preserved as “objects” can impose new burdens on systems designed primarily for email and document payloads—even more so if those systems were designed for operation on-premises. As firms think about these rich new sources of content, they need to re-examine their assumptions for ingestion rates and times, as well as their ability to export content, context, and metadata so that it is not creating a bottleneck for the next step in their e-discovery workflow.

Legal teams should be engaged when new content sources are evaluated for business use to ensure that a reliable, defensible method of collection has been vetted, documented and can be added to the next-gen E-Discovery Playbook. Policies should also be clarified to ensure that employees cannot use anything that cannot be reliably captured.

A next-gen E-Discovery Playbook calls for the use of modern review technologies that are focused on understanding the data—not just how to improve the review rates of documents. For this reason, existing review tools should be examined for their ability to preserve the native attributes of each content source.

A next-gen E-Discovery Playbook acknowledges that the shift away from email and documents is nothing short of a redefinition of the basic unit of work. The task is no longer about finding a needle in a haystack. It's about finding multiple unique needles in multiple unique haystacks.

 

Robert Cruz is Senior Director of Information Governance for Smarsh. He has more than 20 years of Silicon Valley-based experience in providing thought leadership on emerging topics including eDiscovery, information governance, data privacy, and regulatory compliance. Robert holds an MBA Degree from the Stanford University Graduate School of Business.