Collaboration Finds a Way, But Can E-Discovery Keep Up?

 

Today's teams have learned the power of collaboration. Dozens or even hundreds of web-based apps want to help teams do their work faster and better.

From what we've seen, it doesn't matter whether these tools are sanctioned, ignored or explicitly banned: People are using them anyway. With free versions, trial periods and web-based platforms that require no infrastructure to launch, these apps are too easy not to engage with—and they promise benefits too compelling to resist.

To paraphrase Dr. Ian Malcolm from Jurassic Park, collaboration finds a way.

The question is, can e-discovery keep up?

The Proliferation of Collaboration Apps

Collaboration apps allow users to discuss both substantive work and the administration of that work. They often incorporate file-sharing or integrate with other apps, allowing team members to work on multiple aspects of their projects without switching screens. These apps run the gamut from messaging tools like Slack, Yammer, Confluence, Ryver and Flock to project-management platforms like Asana, Trello, Jira, Basecamp and Monday. Then there are edge cases like Expensify, in which users can comment on expense reports, and even document repositories like Dropbox and Google Docs, where users can comment on files and engage in real-time discussions.

Over the last few years, collaboration apps have exploded onto the scene, becoming a $45 billion market. Some of that growth is due to the increase in remote work and geographically dispersed teams. The Bureau of Labor Statistics estimates that over a third of people in business, professional and related occupations work from home at least some of the time. But even within traditional offices, companies turn to collaboration platforms to improve their communication, increase productivity and promote efficiency. The results have been dramatic: Slack reported in 2015 that teams using its software had decreased their email usage by 48.6 percent.

Communication has moved to web-based collaboration apps, but e-discovery hasn't necessarily followed, despite the alarm bells that legal innovators have been ringing for years. And while they may not inspire the gut-clenching terror of a full-size Tyrannosaurus rex, collaboration apps nonetheless create some scary situations for e-discovery professionals.

Trouble in Paradise

Suppose an organization finds that its teams have started using a new collaboration tool without going through the standard technology-onboarding channels. By the time the IT department knows about the app, it contains critical business intelligence, such as trade secrets and proprietary product information. This is bad news: Is that data secure? Is it encrypted? Is it accessible?

Then the real crisis occurs: a lawsuit arises, and the organization suddenly realizes it has no way to extract relevant, discoverable information from any of the collaboration apps its teams are using. By this time, the data may have been modified or lost entirely. In short, the legal team can't get to relevant business data that would be useful to its own case or discoverable by its opponents.

Here are five critical problems that e-discovery professionals encounter with collaboration apps—and five best practices to counteract them.

Problems and Best Practices

1. Knowledge: Remember how no one knew that the dinosaurs in Jurassic Park were breeding? Chances are that your collaboration platforms have also been reproducing without your knowledge. (Yes, your policies might prohibit unauthorized apps, but then, the dinosaurs in the park were all supposed to be female.) Don't assume you know what apps or platforms your teams are using to communicate; affirmatively ask.

Best practice: Issue a comprehensive custodian questionnaire to all employees at least annually, if not quarterly. Ask about every app, platform or website they use to communicate about their work. While you're at it, ask what apps and websites they have open at any given time: chances are there's at least one collaboration tool in the mix.

2. Data retention: When a collaboration platform—especially a limited, free version—is adopted without a full IT department vetting, its storage protocol may not satisfy your legal or regulatory data retention obligations. This raises a host of questions. Is your organization's data still in the app? Who owns it? Who can access it, and how long will that access be available? The answer might be not long enough.

Best practice: Create external archives of the data in your collaboration apps instead of relying on the apps themselves to securely store your data. Data storage within apps may be surprisingly limited—and litigation holds can persist for years.

3. Data modification: Many collaboration apps give their users the option to edit or even delete their statements. So, even if you manage to extract data from the app for a litigation matter, it may not accurately reflect reality. Do you want spoliation sanctions? Because that's how you get spoliation sanctions.

Best practice: If possible, turn off any editing or deletion capabilities within your collaboration apps. And be sure you've educated all of your employees about what it means to spoliate data and why it's a bad idea.

4. Authorization: Users must log in to an app to see their own messages, which means the legal and IT departments need to know how they can gain the requisite authorization to see any given user's public and private messages.

Best practice: Ensure that your IT department knows how to access individual accounts—and remind your teams that nothing they say on a collaboration app is private.

5. Data accessibility: Collaboration apps are designed to enhance communication, not to ensure legal compliance. That means they're typically not designed to export data in a usable format, much less a format that you can plug into your e-discovery review platform. Consider how you'll extract data from a collaboration app before you invest heavily in it.

Best practice: Create an entry in your e-discovery playbook for every app, platform and website that your employees use to communicate about work.

With our increasingly connected workspaces, collaboration will continue to find a way to exist. Now it's up to e-discovery professionals to find a way to keep up.

 

As VP of Product at Hanzo, James Murphy is responsible for defining the product vision, strategy, planning, and execution. To ensure a customer-centric experience, he leverages the insights from his over 19 years of experience working within litigation support, information technology, e-discovery and web archiving. Previous to Hanzo, Jim served as the Director of Professional Services/Operations Engineering with the Merrill Corporation and has held various roles in technical support, business information technology, and solutions architecture.