Jessica Brown and Collin James Vierra from Gibson Dunn & Crutcher LLP do a great job in setting out some of the challenges companies will face when undertaking an eDiscovery when relevant data is held within channel-based platforms such as Slack, Microsoft Teams and Google Hangouts. Given the current crisis, with more and more people working from home and thus using applications such as these, these challenges are going to come up more and more readily in both disputes and investigations. Therefore it is essential that companies consider, in advance, how they will manage them.
It is true that there are tools available that help with collection from some of these platforms, and no doubt there are more in the pipeline to help meet these challenges. However, regardless of the platform, it is best for companies to be proactive and be prepared. To help do this, the authors set out six steps to help with preservation and disclosure:
- Limit channels only to the necessary participants;
- Limit third-party access;
- Ensure that channels have an appropriate description and the content is consistent with the description;
- There should be dedicated channels for privileged communications;
- Protocols should be defined, written into a policy and communicated to staff; and
- There should be regular audits to ensure compliance - both in terms of content and user access.
I totally agree with the authors on the six steps they step out, and I would also ensure that the functionality around audit trails, back-ups, etc. are defined, maintained and tested. I would also suggest that companies test their ability to preserve, collect and process data from these channels so that they are prepared in case it is needed in a live scenario. You do not want to be doing this for the first time with a regulator breathing down your neck.
If you would like to know more on how to deal with these type of technologies, please reach out to me.
Channel-based platforms are becoming increasingly popular among major companies, especially in a work-from-home era. To date, companies generally have not been compelled to produce such data for a variety of reasons, including because the burdens of review and production have outweighed the anticipated value of the data. However, companies may be compelled to produce such data in the future, and therefore they should plan accordingly. For channel-based platforms, this means companies should develop protocols and enforcement mechanisms to limit user participation to necessary channels only, regulate guest access to company channels, make liberal use of descriptively titled channels for new projects or user groups, and segregate privileged conversations as much as possible.