The following is Part X in a multi-part series on how to draft and leverage an ESI protocol in any litigation. Part I of our series discussed the When, How and Why in planning for and creating your ESI protocol. Part II addressed the Key Components of an ESI Protocol, Part III walked through the Top 10 Situations You Can Avoid with a Protocol, and Part IV discussed Planning for the Production of Social Media. Part V covered the importance of including Manner of Production in your protocols, Part VI discussed the value of metadata and what to ask for, Part VII covered Form of Production, Why it’s Crucial and What to Include, Part VIII discussed how to handle search term negotiations and Part IV walked through Negotiating a Protocol You Can Live With.
In conjunction with this series, eDiscovery Assistant has created a new section in Checklists and Forms titled ESI Protocols that will include new content with each part of this series. That section includes sample ESI protocols, checklists on what to include and a list of metadata fields for inclusion in your protocol.
The pandemic vastly accelerated the use of collaboration platforms as organizations scrambled to have ways for their employees to stay connected and communicate in real time. Meetings normally conducted in person were relegated to online video meetings via Zoom or Teams and companies that had not yet adopted these tools rolled them out very quickly to allow business to continue while we sheltered in our homes. Tools like Teams, Google Apps (now Google Workspace), Slack and Zoom suddenly became commonplace.
Fast forward to the post-pandemic era, and these tools are now the cornerstone of workplace communications. Email is still a primary source of external communication — to folks outside the enterprise — but internally, employees lean on the chat functions and other built in tools of these collaboration platforms. As with any new tools, that means there are ediscovery implications to consider. These new collaboration platforms include instant messaging, chat, file sharing, collaboration rooms, video conferencing and online meetings, VOIP (Voice over Internet protocol) phone systems and apps galore for folks to use.
If you read the other parts of this series, you already know what comes now — the complexity of these collaboration tools means you have to plan for dealing with the preservation, collection and production of a whole new range of types of ESI that will come from these sources. We touched on the need for planning in Part I, and collaboration tools make that planning process even more important. There are several unique considerations with collaboration platforms that need to be considered early on, or you could end up 1) not getting the information you need in the way you want it, or 2) having to redo discovery at great cost.
Handling Pointers or Links to Documents
The biggest issue for ediscovery professionals right now is the change in the way these collaboration platforms handle what we used to call attachments, and the parent-child relationship. Previously, emails had documents physically attached to them so you always got the document attached to an email in a production (or you should have), and it was the version that the author of the email had attached at the time. New systems — Slack, Teams, Gmail, Dropbox, Box, and multiple other tools now provide links to electronic files that either remains static, or more likely is updated regularly. So the question becomes when the document is NOT physically attached to the email or chat message, how do we preserve, collect and produce those documents to maintain the relationship created by the link? You need to plan for that in your ESI protocol.
This issue is so complex that we haven’t even agreed on what to call these links or pointers to a document. In Nichols v. Noom, the Court called them hyperlinks and stated that hyperlinks are not attachments. That was controversial, but not wrong — not all hyperlinks are attachments. Some are just links to something on the internet and we’ve never considered those attachments in the past.
There’s some notion that “pointers” is the more appropriate term, as the links “point” to the document where it lives. A quick search of the term “pointers” shows that a pointer is an object in computer programming that stores a memory address. A pointer is really just a set of characters that “points” to the location of a document, photo, or other type of file that the user wants to reference.
This issue of pointers, or links, has multiple implications for your ESI protocol:
- You need to understand whether any of the sources of ESI that your client or the opposing party has include pointers or links.
- You have to be able to communicate in technical terms with opposing counsel (and they with you) about how to handle producing documents that are at the other end of the pointer/link while maintaining the parent-child relationship, if possible.
- You need to include specific language on how each party will handle responsive ESI that appears under links included in responsive email, chats, etc. Your protocol needs to define terms, determine how data will be collected, and then produced to keep those relationships intact. The language and specifics will depend on the platform you are using, but it needs to be agreed upon upfront. Courts, including Judge Parker in Noom, have shown little sympathy for parties who do not understand the data issues up front and will not order a party to redo discovery because you didn’t realize you needed to have linked documents produced with a parent-child relationship.
The other significant issue with the technology of using pointers or links is which version of the document is produced with the corresponding message. Yes, you read that correctly. A pointer or link to a document that you sent six months ago points to the same place, but the document that lives there may have been updated ten times since you sent that link. Standard ediscovery protocol is that the version that existed at the time the pointer or link was sent should be the one that is produced with that message. After all, what the author of the responsive message intended to attach reflects their communication most accurately.
Most of the collaboration platforms store each version with a time stamp, so it IS possible to get the version sent at the time of the message, but it involves thinking about that before any work is done to identify the scope of data and it’s complicated depending on the platform. It is crucial to coordinate with your discovery counsel or project team to ensure that you are considering versions when preserving and collecting data for production.
Format and Location
We covered form of production extensively in Part VII of this series, and collaboration platforms add even more complexity to what you want in produced documents. For example, Slack data is exported in .JSON format, and needs to be converted to be readable. That means you need a tool that is designed to export and review Slack data that allows for searching. Even the smallest Slack collections contain thousands of messages, and you’ll need to be able to filter them with search terms or TAR, both of which work best with native data.
But format of the ESI at the pointers or links is also critical. The most obvious choice is native format with metadata that allows a link back to the message or document that pointed to it. But our tools in ediscovery have not yet caught up to handling this issue, so its crucial to understand what you can do, and what you are required to do BEFORE you get started.
Location is also tricky. Teams data is dispersed across the platform and requires accessing it from multiple locations. Private chats, group chats, uploaded files and pointers or links are all in separate locations that need to be tracked down.
Both Slack and Teams allow for connecting hundreds of other applications as well, meaning that you may have to go to third party applications to collect ESI that would have been “attached” in earlier days. Those issues significantly ramp up the complexity of a collection and require much more manual intervention that we got used to with collecting email and its attachments.
Pulling it Together
Collaboration platforms have made work easier — no question. But the process of finding, keeping, collecting and producing data from these platforms has introduced challenges that the technology in ediscovery is still grappling with. Know what your challenges are, and be sure to choose professionals and tools to ensure that you have a defensible position in handling these types of ESI.