Here’s a riddle: what will it take to solve the ediscovery challenges posed by new collaboration applications?
I recently posed that question to a few industry leaders who—like me—have been giving a lot of thought to how organizations can manage the ediscovery challenges of collaboration apps. We all agreed that the answer could be found in the question itself: collaboration, specifically between the legal department and IT professionals.
Before I get to that, though, I want to take a quick look back at history to see how we’ve resolved similar ediscovery problems before, with email. Then I’ll turn to what collaboration apps are and how they’ve exploded onto the corporate scene, along with the challenges they pose in terms of managing ediscovery. Finally, I’ll share some insights about how organizations can start untangling these knotty ediscovery issues.
We’ve Done This Before: A Brief History of How Email Put the E in Ediscovery
I bring up email both to show that we’ve conquered similar data challenges in the past and to remind all of us that the solutions reside in embracing what’s new and different, not in trying to make the new data type conform to our old ways of doing things.
Deanna Blomquist, the senior manager of third-party management and ediscovery at Dish Network, emphasized this parallel. As she said, “When email was first on the scene, everyone in the industry was trying to ‘paper-ize’ electronic documents so they could treat them like the documents they were used to. Now, with collaboration apps, we’re trying to ‘email-ize’ their content so it’s more familiar.” Of course, treating emails like paper documents didn’t work—we had to create new tools, like email threading and near-deduplication, to manage the unique features that set emails apart from paper discovery.
Collaboration app data is even more different from email than email was from paper discovery. After all, an email is just an electronic version of a letter—something we’ve been using for hundreds, if not thousands, of years. Deanna continued, “Whereas email is linear and two-dimensional—like an old-fashioned letter—collaboration tools are much more three-dimensional. With an email, you’d send it, and someone specific would receive it, read it, and respond. It was all very orderly and easy to follow where that letter or that communication went. That’s not how collaboration apps work.”
That brings us to the challenges of working with collaboration app data in ediscovery.
New Collaboration Applications Are Creating Significant Ediscovery Challenges
Before we go any further, what exactly are these collaboration apps we’re talking about? I’m using the term broadly to encompass any of the myriad applications and platforms that allow teams to work together seamlessly no matter where they’re physically located. These include communication tools like Slack and Microsoft Teams, project management platforms like Asana or Trello, issue tracking software like Jira or Zendesk, and many more.
Collectively, collaboration apps have supplanted email for a huge portion of internal enterprise communications. Almost overnight, those communications have moved into platforms like Slack, which reports that it now has over 12 million daily active users. These aren’t casual users, either: on average, Slack users have the app open for nine hours a day, clocking about 90 minutes of active use. Microsoft reports similar numbers for the Teams component of its Office 365 suite, noting that its 20 million daily active users include 91 percent of the Fortune 100. In short, these platforms have had a meteoric rise that has revolutionized organizational communications.
But these tools were designed for communication, not ediscovery—and that’s created a host of problems.
As Cortney Starble VanDenburgh, the ediscovery manager for global litigation at CBRE, put it, “These platforms combine all my worst ediscovery nightmares.” She noted that it’s often hard to determine where data is stored, and that data is widely varied, from instant messages to “bulletin board” announcements that may include embedded and linked content, emojis, and reactions. Context can be particularly challenging to parse, as collaboration communications are informal and tend to go off-topic. In short, “It’s difficult to govern these conversations, much less do any traditional ediscovery within these platforms, for a variety of technical and practical reasons.”
Larry Briggi, an ediscovery consultant for Xact Data Discovery, agreed. “These tools were created not for governance or ediscovery, but for collaboration. That’s led to a better user experience, but at the same time it’s created some real challenges. Many platforms have made APIs available, allowing third parties to come in and provide additional functions, such as helping enterprises identify their communications and export them out of the host application. But some of those exports end up in a format that’s not remotely conducive to governance or ediscovery.”
Aside from those technical challenges, Larry added, the nature of collaborative conversations can make it difficult to determine relevance for individual messages. “Content in one message may only appear relevant when you look at the whole conversation. There are delays in responses, multiple group members having overlapping discussions—it’s like sitting in an airport surrounded by conversations and trying to monitor all of them. And then there are acronyms, abbreviations, code words, misspellings … these all complicate the environment and make email look like a really simple problem.”
So, how can we solve these problems?
It’s Going to Take a Collaborative Team Effort
Because collaboration apps pose both legal and technical problems for ediscovery, both the legal and IT departments need to be involved in finding solutions. The key is getting legal and IT on the same page.
Meghan Brosnahan, chief ediscovery counsel for Uber, explained, “The legal department needs to be at the table and be open to thinking about new ways to approach this data. That involves being willing to fail quickly and try a different approach, instead of writing a policy in a vacuum and then just rigidly sticking to that plan. You’ve got to be willing to change and iterate, to experiment.” To get that seat at the table, she added, “You need to make friends with your IT team: understand their jobs, learn what they do, and appreciate the pain points they’re facing. You should always be asking them how you can help.”
Meghan cautioned that companies can’t avoid the problems associated with collaboration apps by forbidding their use. “These apps are popular because they help people do their work more efficiently. If you create structures that make it difficult to access these tools, they’ll go around you—and then you have a shadow IT problem that’s even harder to deal with.”
Cortney agreed that prohibition was an ineffective approach. At CBRE, she explained, “We ask our people to tell us what they want to use. From there, we’ll work together to figure out how to preserve data, collect it, or even talk about it at an enterprise level. We’ve got to all be on the same page, but we can’t just shut people down. If we do, someone will go rogue, and then we’ll have no control over the governance of that data or even whether we have custody and control over it to collect it for litigation.” She added, “This is a big challenge, to be sure, but we’ll figure it out—we’ve just got to keep talking to each other.”
Deanna underscored the importance of open communication and facilitation. As she said, “The key is staying close to your business partners and having your voice heard in all those conversations. To do that, we’ve got a philosophy that the legal department should never be seen as ‘the voice of no.’ We strive to be the voice that says ‘Let’s figure out how we can influence and support what the business needs to do to deliver on its goals.’ Our strategic mindset is all about being an enabler instead of an impediment—and the result is that our business partners are more inclined to ask for guidance or direction instead of trying to avoid our requirements.”
Interested in learning more?
We recorded a webinar that includes these conversations and much more. We also invite you to come visit us at Legaltech during Legalweek in New York in early February, booth 3227. Hanzo invites you to schedule a meeting to discuss all things collaboration. We’re also sponsoring the Corporate Ediscovery Hero Awards and invite you to use our guest promo code, HANZOGUEST to register.
Let's Meet at Legalweek! We know collaboration data is presenting real challenges to corporations around the globe. We’re excited to help.