“What We Have Here Is a Failure to Communicate” – EDI Panel Explores the Impact of Communication Channels in Litigation

The Electronic Discovery Institute, better known as EDI, is dedicated to education, leadership, service, advocacy, and research at the intersection of law and technology. ProSearch has partnered closely with EDI for years, meeting with a broad range of experts in eDiscovery from community corporate counsel, private practitioners, judges, and professors of law and science to consultants and technologists. Some of the most thought-provoking conversations and innovative ideas have emanated from this group.

In June ProSearch sponsored two EDI Mid-Year Meetings, held in Chicago and New York. At both events, ProSearcher Dan Kinney moderated a session titled “What We Have Here Is a Failure to Communicate: Off-Channel & On-Channel Communications Platforms” designed to discuss the complexities of modern communication platforms and their impacts on discovery in litigation and investigations. The panelists and participants brought forth several interesting observations.

The discussion started with the many current and emerging chat tools and the nuances of making them discoverable. Panelists and participants shared freely, and the conversations revealed that our day-to-day communication methods are changing rapidly and the channels and content are creating new challenges for compliance, discovery, and internal investigations:

  • Larger tech companies may have many chat applications depending on the team. They are looking at it through a lens of functionality before discoverability.
  • With most of the communication tools, the discovery aspect is reactionary versus proactive most of the time.
  • Policies are set to keep communications discoverable within an organization. Humans, being human, will use the communication means they see fit in each situation, even if it breaks the policy or discoverability rules of their organization.
  • Specifics in policies should be set on a regular basis within an organization. Updates in technology could impact policies and should be revisited on a consistent basis.
  • Retention policies should be set on a communication tool level and not be held to a broader email retention policy.
  • The nuances of communication – such as GIFs and memes – can imply a message or feeling with no actual words being typed, presenting new challenges for capture and review.
  • What is considered a family in a chat? Hyperlinks specifically have been called out in ESI agreements as not being a part of a family, and therefore not discoverable.
  • Hyperlinks are a snapshot in time and may have completely different content by the time discovery happens.

ProSearch is leading the effort to solve the challenges presented by chat, messaging, and collaborative applications in litigation and investigations with our WorkStream solution.

We are ahead of the game in managing emoji content in discovery.

Read the white paper “Little Pictures Worth a Thousand Words” to learn more.

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Daniel Semelheck

Daniel Semelheck

Daniel is a Project Manager at ProSearch with almost 20 years of experience in eDiscovery, information management, and general litigation support. He has led the litigation support work for multiple mass tort, multidistrict litigation, and second request matters. Daniel is skilled in all phases of electronic discovery and is a Relativity Certified Administrator (RCA), RelativityOne Certified Pro (ROCP),  and a member of the Association of Certified E-Discovery Specialists (ACEDS).