In part one of this series, we examined the importance of the concept of a custodian in traditional e-discovery and how it might be applied to modern collaboration platforms. In part two, we discussed the technical underpinnings of three popular collaboration tools—Microsoft Teams, Google Workspace, and Slack—with a focus on some unique e-discovery challenges presented by each. In this final installment of the series, we provide a set of practical tips and recommendations on how to successfully navigate discovery of collaborative data sources.

 

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Part 3: Practical Tips for Addressing Collaborative Applications

1. Do your research

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  • Investigate whether collaboration applications are used by your client, especially by those individuals involved in the underlying issues in the litigation (regardless of whether they are technically "custodians" of a specific source). Organizations are likely using at least one collaborative platform, regardless of their size and level of sophistication.
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  • Develop a preservation plan that addresses collaboration applications, and revise it as you learn more about custodians' use of collaboration tools for conducting business, communicating, and generating/revising information relevant to the dispute.
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  • Don't limit your inquiry to your client's IT contacts, and be aware that answers may change as time passes. Keep these applications on your radar and ask individuals about them during routine custodial interviews.
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  • Understand which collaboration applications are/were used, by whom, when, and how, keeping in mind that since tools like Microsoft Teams have many different facets, the use cases identified by each custodian may differ markedly.
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  • Identify the specific license/tier and corresponding e-discovery capabilities available in each collaboration application used by your client. This will inform what can be done to preserve and collect from these sources and whether third-party tools will be needed to supplement built-in functions.
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  • Research the options for identifying and collecting documents shared via hyperlink and stored elsewhere within the company's IT ecosystem, but not physically attached to the message/document. Although judicial decisions addressing parties' obligations with respect to so-called "modern attachments" are still rare, more are likely on the way.
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  • Identify the default/governing retention schedules applicable to each of the data types created and/or sent through collaborative applications, as well as any limitations on the scope of retention and data export options.

2. Involve technical resources and experts early

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  • Leverage and connect all appropriate technical experts (including client IT personnel, service providers, and e-discovery attorneys) to understand and evaluate the available options for preserving, searching, collecting, processing, reviewing and producing collaboration content.
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  • Ascertain the level of experience your service provider has with the collaboration platforms used by your client. If they do not have a well-honed process for handling the nuances of those collaboration platforms, consider additional or alternative resources.

3. Stay flexible

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  • Be flexible in crafting an identification and search methodology that makes sense based on your client's data, the needs of the case, and the evolving nature of collaboration applications.
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  • Avoid rigid agreements or protocols that broadly define "custodial" data sources or require them to be searched using a specific method (e.g., via search terms), since doing so can result in expansive and disproportional results. Even after a reasonable, early inquiry into your client's systems and applications, you may not always know all potential sources of ESI when negotiating protocol terms, and the capabilities for searching and collecting from cloud-based applications change often.
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  • Similarly, when requesting ESI from collaboration applications, be mindful of the evolving capabilities of these systems, including the options for identifying, searching, collecting and processing collaboration application data. If you agree to certain limitations up front, you could be foreclosing better options that subsequently become available for the most efficient handling of such data.

4. Review template ESI protocols with caution

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  • Carefully review ESI protocols that may have been prepared without consideration of the challenges of collaboration platforms with an eye towards maintaining flexibility.
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  • Scrutinize definitions that could create ambiguity or unintended obligations when dealing with ESI from collaboration applications, such as variations of the terms custodian, custodial sources, shared drives, non-custodial sources, attachments, family relationships, chats, instant messaging and collaboration applications.
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  • Consider limiting the definitions of custodian or custodial sources to relevant ESI created and affirmatively stored by the custodian in specifically enumerated locations, rather than ESI merely accessible to them.
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  • Ensure that the protocol cannot be construed to require collection from sources that are not within your client's possession, custody or control, such as unmanaged collaboration applications used by employees without company approval or that are otherwise not controlled or licensed by the company, including applications used on personal devices.
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  • Avoid codifying in too much detail the technical requirements for handling hyperlinked files that may overly restrict your options and be unduly expensive (such as collecting all versions of hyperlinked files within the data set).
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  • Note that the identification of particular custodians, if any, is intended as a means to focus the scope of discovery to the ESI that is most likely to be relevant.
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  • Clarify that the protocol will not require broad keyword searches across collaboration platforms or other shared ESI sources and that mere custodial access to shared non-custodial sources does not require that such sources be collected or searched.
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  • Emphasize that, as per Sedona Principle 6, each party is best situated to, and obligated to, determine the procedures, methodologies, and technologies for preserving and producing responsive documents.

5. Raise the red flag early

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  • If any of the above tips cannot be followed, get help from appropriate technical and legal resources.
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  • If the issue you discover impacts the accuracy of your productions, disclose the issue and propose a cure.
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  • If there is no easy solution to the issue you face, document the problem in sufficient detail in the event you are required to seek relief from the court.
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  • If you learn that your prior understanding of what was available and produced is no longer accurate for whatever reason, you may need to amend your discovery responses, protocols, court submissions, and representations to opposing counsel.

Final Takeaway