- eDiscovery and electronic Document Review should include collaboration platforms
The unstructured, multi-faceted, real-time nature of collaboration platforms, such as Slack, Teams and Trello makes it difficult to incorporate message chats and boards into traditional eDiscovery and Electronic Document Review workflows. However, these platforms are becoming increasingly important as work-related conversations move from email into message boards and chats.
If an organisation uses Slack for example, legal teams should expect opposing counsel to request Slack messages. In order to know what’s in those messages, a full electronic document review that includes thousands of Slack messages should be conducted during the eDiscovery process to determine what is relevant, responsive, privileged and confidential.
Based on the review and analysis of electronic documents, the legal team can then begin to gain a greater understanding of the factual issues in a case, formulate legal theories and identify key witnesses.
- Clear ESI protocols are a must
More Electronically Stored Information (ESI) is created every second of every day, whether it’s in the form of emails, WhatsApp messages or on internal Slack message boards.
In order to keep track of all this data, businesses must have a data inventory (or data map) that gives an instant overview of the various data sources within a company. This should include how information is collected and where data is stored.
Legal teams also need to create ESI protocols that outline clear methodologies and repeatable processes for activities that include the legal hold, collection, processing, review, and production of electronic documents. Protocols should also make it clear how ESI should be formatted and exchanged, as well identify curators and other key stakeholders.
- The production and presentation of ESI is key
For legal teams, understanding how the ESI within a client’s organisation is generated is an essential step — unfortunately, it’s only half the battle. Modern data sources include multiple collaboration tools, text messages, social media platforms, and website content. Posts can easily be altered and deleted, and it can be difficult to produce and present them in court.
Traditionally, legal teams have relied on simple screenshots, but as we know, the authenticity of screenshots is questionable. Instead, evidence must be authenticated and defensible — which means ESI must have the necessary hash values and metadata.
- Don’t forget about text messages
How much business is being done via text messages? From company WhatsApp groups to clients connecting with sales reps via text, legal teams should consider texts and WhatsApps as a common data source subject to collection and Electronic Document Review during the eDiscovery process.
However – the key is for legal teams to collect and preserve text messages in a defensible format.
- Human review remains critical to the eDiscovery process There are many excellent tools available to assist legal teams in the identification, collection, preservation, processing, review, reporting, and disclosure of electronic data in regulatory, civil and criminal environments. However, human review remains important too – the question is whether legal teams will be combing through thousands of documents, or a much smaller sample that has been identified and collected electronically and can now be carefully reviewed to determine the merits of a case be legal professionals.
- Every legal professional must be technically competent The good news is that there are tools to assist in the eDiscovery process, but that doesn’t mean that legal professionals shouldn’t stay up to date with the latest tools and technologies. Afterall, clients don’t want to feel as though they need to teach their legal teams about technology. They also need to know that their lawyers are up to date in terms of eDiscovery, ESI and the Electronic Review od Documents, which are forming the backbone of almost every case see in courts today – or settled out of court.