Bringing Legal and IT Together to Overcome Today's Communication Challenges

The reign of email is coming to an end: A considerable number of today's business communications happen in collaboration applications like Slack, Confluence, Asana and more. But these apps pose serious challenges for e-discovery and information governance. I recently caught up with a few industry leaders to get their thoughts about why collaboration platforms are so popular, why they're problematic and what actions organizations need to consider to embrace them.

The Rise of Collaboration Platforms

It used to be that internal enterprise communications occurred nearly exclusively via email. Almost overnight, those communications have moved into Slack and similar platforms. Slack reports that it now has over 12 million daily active users who have the application open for, on average, nine hours a day, with about 90 minutes of active use. In some organizations, that's resulted in a 30 percent or more reduction in email. Microsoft reports similar numbers for Teams, which is part of the Office 365 suite: 20 million daily active users, including 91 percent of the Fortune 100. Clearly, there's been rapid adoption of these platforms.

Why have these apps become so prolific in today's corporate environment? Deanna Blomquist, the senior manager of third-party management and e-discovery at Dish Network, observed that collaboration apps closely mimic the way people talk. "Whereas email is linear and two-dimensional—like an old-fashioned letter—collaboration tools are much more three-dimensional. They emulate the way that colleagues would work together if they were all in the same room, talking, sharing notes, sharing screens and collaborating on a project, even if they're hundreds of miles apart. Plus, people can easily share work product with dynamic links and work on those projects without ever leaving the collaborative tool, which is really driving adoption."

But the very traits that make collaboration applications popular also make them difficult to manage.

Collaboration Creates Challenges for E-discovery and IG

Cortney Starble VanDenburgh, the e-discovery manager for global litigation at CBRE, told me, "These platforms combine all my worst e-discovery nightmares. There's the question of where data is stored. The types of data are extremely varied, with instant messages, 'bulletin board' communications, embedded and linked content and emojis and reactions. These communications are very freeform and informal, which makes it hard to figure out the context of a communication. Plus you have to identify which boards and threads have potentially relevant information and who your custodians are."

Similar problems plague information governance. Meghan Brosnahan, chief e-discovery counsel for Uber, said, "The foundation of information governance is that you need to have a standard taxonomy for how you classify, categorize and provide access to information. That's not something that collaboration applications lend themselves to. Then, from the standpoint of data retention, with most data you'll want to develop a retention schedule that's either time-specific or action-specific. But how do you determine when those times or actions have occurred with collaboration tools where 100 people had access to a particular piece of data?"

Meghan was quick to add that companies can't avoid the issue by forbidding the use of collaboration apps. "If you create structures that make it difficult for people to do their jobs, they'll go around you—and then you have a shadow IT problem that's even harder to deal with."

Nor do the challenges end when you've identified relevant data from a collaboration app. Larry Briggi, an e-discovery consultant for Xact Data Discovery, pointed out that native Slack data is exported in the JSON format, which is complex and not amenable to standard e-discovery tools. "It's really hard for the e-discovery side to take those messages, break them apart and then put them in an easy-to-understand format for review. And the collaboration environment encourages brevity and incomplete thoughts, which makes context hard to discern."

Then there are volume challenges. "I've seen an enterprise with 500,000 Slack users and 200,000 channels. How do you know which chats are responsive or which users are involved? How do you identify relevant versus irrelevant channels? At a global organization, how do you manage the varying privacy rights of all those users? In a couple of years, we'll have established industry standards and built the tools we need—but for right now, this is a real challenge."

So, what should organizations do?

Managing the Challenges of Collaboration Platforms

For e-discovery, Cortney suggested adding specific language about collaboration apps to custodian questionnaires and interviews to remind people of these sources. But she doesn't stop there: "Follow up with IT to see what applications custodians have access to and what they use. People can be forgetful about what they use because there are so many apps available."

Meghan added that organizations must carefully educate both in-house and outside counsel about what to expect from collaboration data. "We're so used to talking about email and documents—about family relationships and the old 'paperclip rule.' That's not a thing with collaboration data. We have to throw away all of that old language; it muddies the waters."

Deanna had a similar perspective. "We're trying to put a square peg—collaborative content—into the round hole of a linear communication paradigm like email. It's like when e-discovery was new and everyone was trying to convert electronic documents to paper, except now we're trying to treat collaboration data like it's email."

She also pointed out that between today's data privacy regulations and the frequency of data breaches, organizations must know what data they have and where it is at all times. "The reality is that the cost of a breach or a regulatory action for noncompliance is going to be far higher than the cost of investing in a good information governance program."

How is your organization managing collaboration platforms? As Larry said, "These types of data are here to stay—so you have to figure out a methodology to get collaboration data in a reviewable format that your attorneys can work with." I couldn't agree more.

Brad Harris is the VP of Product at Hanzo, a pioneer in the contextual capture, and preservation of dynamic web and collaboration content for corporate legal and compliance departments. He leads product vision and innovation for the company. Brad has more than 30 years' experience in the high technology and enterprise software sectors, including assisting Fortune 1000 companies enhance their e-discovery preparedness through technology and process improvement. Brad is a frequent author and speaker on data preservation and e-discovery issues and is a member of The Sedona Conference WG1.