How e-discovery is getting smarter about how we communicate

Not too long ago, we had only a handful of ways to communicate with each other over long distances. We could mail or fax a letter. We could make a telephone call (or before that, send a telegraph message). And that was pretty much it. Today, on the other hand, there are more ways to communicate with each other than any of us could ever possibly use.     

What’s more, we are nearly constantly attached to electronic devices that enable communication during our every waking hour. We use tablets and computers at work and home, and we carry smartphones and other mobile devices with us wherever we go. Through these devices, we can access an array of communication platforms—including email, text messages, social media, video chats, an ever-changing assortment of messaging apps, and even gaming apps (many have chat features and discussion forums). The options are almost staggering.

While we may quickly forget about the often-brief electronic exchanges that take place on those platforms, the messages themselves usually don’t just fade away—most of them (even those you thought were deleted) are saved on our devices or on a server somewhere in the company or in the cloud. And that’s often where they remain, unless of course, those communications happen to contain material that’s potentially relevant in a legal or regulatory matter.

In that case, those messages can suddenly become important months or years after the fact—and now they need to be identified, collected, and preserved. In the days where email and text messaging were the primary electronic communication mediums, that task was relatively easy to accomplish. But as society’s methods of communication evolve and become more varied, e-discovery companies face a constant challenge to present a comprehensive picture of all the relevant, discoverable data.

Identifying communication channels

Believe it or not, collecting the data is not the hardest part of e-discovery—it’s figuring out where the data is in the first place. Even where organizations have embraced chat programs for their internal, and sometimes external, communications (Yammer, Teams, Slack, and HipChat are popular enterprise examples), you cannot assume that everyone limits themselves to just those officially sanctioned channels. It’s not like the good old days, where everybody had a company-issued computer and Blackberry that were locked down and controlled and the communication options limited.

The reality is that employees will communicate with each other using any number of non-approved means, and there’s really no way a company can categorically prevent that. And so, a big part of the process has become helping companies determine what other methods of communication are being used by employees—many of which the company may not even be aware.

One of the best ways to accomplish that is by using electronic surveys (often called “custodian questionnaires” in e-discovery parlance). Such questionnaires are faster and cheaper than in-person or telephone interviews, can help quickly determine the key players, and can help identify where relevant data might be located and which of the various communications channels are being used.

Gathering the data

Once the communication channels used have been identified, the next step is to collect that data. And while corporate systems like Yammer and Slack might be readily accessible and data collection relatively simple, that’s not always true with other app-based or cloud resources—especially those that exist only on employees’ personal devices or personal accounts they created within various communication platforms.

Many people don’t realize that if they use their personal computers, phones, tablets or other mobile devices, those devices could be subject to collection in a litigation. That topic deserves its own separate article but suffice it to say present law isn’t entirely clear on whether an employee can be legally compelled to comply with such discovery on their personal devices, making the collection of such communications all the murkier. 

Some companies are addressing that problem by requiring employees to sign an agreement that preemptively consents to the company’s ability to access any such personal device or solution as needed for legal matters if the employee chooses to use their personal device for business purposes. So, before you go using the WhatsApp account you normally use to communicate with your friends and family to start talking business, keep in mind that you may be consenting to that otherwise personal account being subject to discovery.

Another key aspect to the data collection is to ensure that the metadata—descriptive information about the data itself—is also preserved. Metadata, for example, may include indications of participants, timing and locations (based on networks used, IP addresses, GPS data and more), which can not only help understand the context of the communications themselves, but alone might be rather revealing and informative in their own right.

And of course, all such data collection should be done by technicians and investigators with digital forensic experience and credentials, using forensically sound tools methods. Those experts can also assist in navigating the increasingly complicated minefield of privacy laws ensuring that your discovery efforts don’t turn into a criminal case. A defensible, forensically sound, and compliant data collection process will help ensure that the data collected is admissible when it comes time for trial.

Normalizing the data

Once gathered, the data often needs to be transformed and standardized into a uniform and usable format. While that may sound simple, it is in fact a rather complex process. Text messages, for example, seem like very simple technology, but that simplicity actually makes them more difficult to handle than other, more complex communication forms.

Unlike email conversations, where participants typically create a new thread for new topics, text threads can go on for months or even years. What’s more, an exchange between two people can encompass several topics at once—which might make sense in context but can prove confusing for a third party reviewing individual pieces that aren’t linked to one another (remember text messages don’t have subject lines). Group texts can be even more complex—particularly if individuals within the group exchange one-on-one texts simultaneously.

With emails you can group them by subject line or internal conversation and thread codes often found in email headers (the same metadata used by Outlook and Gmail to group conversation threads). But unfortunately, there's often no such simple solution to reconstruct conversations from other platforms. So, just because a particular messaging system may seem simple, don’t assume that to always be the case. It’s often the simpler systems that are more challenging to review and understand out of context.

Poring over the data

After all initial data has been collected and normalized, it can then be analyzed and reviewed for relevancy and other information. Whether it be internal investigators looking for proof of some suspected bad act—the proverbial smoking gun—or attorneys determining whether a given communication is relevant to a litigation, there is an ever-increasing number of tools to assist with that review and investigatory process.

Algorithms, patterns and statistical analysis and even artificial intelligence can be used to help determine relevancy, reconstruct communication patterns, connect otherwise seemingly unconnected people and events, and much more. Communication trees, for instance, can help reviewers understand with whom a given person most often communicated, and that might expose key individuals that hadn’t previously been identified. Looking for communications that buck certain patterns might also help identify smoking guns. No matter what the need, there is likely a software solution out there to help answer the most pressing questions.

Identifying the data makes all the difference

In the end, the data buried within a company’s various official—and unofficial—communications channels can make all the difference in a legal matter or investigation. And while the communications options available today seem to be never-ending and nearly overwhelming, the key is making sure your first step—finding the data—is a comprehensive, successful and defensible one. When the process is started correctly, it will end successfully.