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When water cooler chatter became less common when the pandemic hit in 2020, chat platforms and text messages (IM) filled the gap.  Collaboration tools like Zoom, Microsoft Teams, Slack, Bloomberg Chat and IM are now ubiquitous, with more than 67% of white-collar employees still “working from home to some degree.”[1] Indeed, a survey of IT managers reported that 91% of all companies now use at least two messaging apps.[2]

As more companies integrate these channels into their typical business practices, more and more legal matters will involve the review of chat message conversations. It is imperative that companies have processes and systems in place to control, retain, monitor, and review such business communications.

There are numerous challenges for business in reviewing chat data, including identifying and accessing chat platforms, handling ephemeral data, identifying participants (with various aliases or usernames), decoding the cryptic nature of some messages, coordinating the attachments and responses to those messages, and making sense of notices when parties enter or leave the conversation.  People also often speak differently in a chat setting (more tersely, and using shorthand, emojis, slang, abbreviations, and images) than in other communication forms. Thus, external context may be even more essential to understand the nuances of the matter being discussed.Continue Reading From The Water Cooler to the DMs – Tips and Tricks for Efficiently Reviewing Chat Communications

When you first hear about “auto-deleting” or “ephemeral” messaging, you may think of nefarious techniques to hide evidence of wrongdoing. In fact, ephemeral messages – which are typically end-to-end encrypted and set for deletion shortly after they are sent and/or read – in various forms are routinely used for business and other relevant communications. That means that they must be considered for preservation and potential disclosure, raising all sorts of legal, technical, and optical considerations. This came up recently in Federal Trade Commission v. Noland, No. CV-20-00047-PHX-DWL, 2021 WL 3857413 (D. Ariz. Aug. 30, 2021), where the court considered the use of ephemeral messages in the context of an investigation by the Federal Trade Commission (FTC) of the company Success By Health (SBH) and its officers for a potential pyramid scheme. The day after learning of the inquiry, the officers switched from their existing communication means (WhatsApp and iOS messages) to other encrypted mobile messaging apps including Signal, which they set to “auto-delete” all messages on reading. Company leaders exchanged thousands of such messages over many months, despite the FTC’s instruction to preserve documents and suspend ordinary-course document destruction. Further, defendants colluded to remove all traces of the apps and messages from their phones right before turning them over for inspection. The truth came out when the FTC received anonymous information alerting it to the undisclosed use of the apps. On the FTC’s motion against defendants for sanctions, District Court Judge Lanza found defendants had intentionally deprived the FTC of relevant documents, and sanctioned them under Fed. R. Civ. P. 37(e)(2) with an adverse inference that the spoliated evidence was unfavorable to the individual defendants.

Examples of Ephemeral PlatformsContinue Reading Ephemeral Messages: Handle With Care

As the use of collaboration and cloud storage platforms expand, litigants and courts are facing increased challenges in keeping up with e-discovery requirements created with different technologies in mind. One example involves the discovery obligations associated with files referenced in email only by hyperlink. Should a litigant be required to find and produce that referenced document as if it were an attachment? What if that is very hard to do? What if the file has moved or changed in the interim? The Southern District of New York recently addressed these issues and held that – for a host of practical and technical reasons – such hyperlinked documents should not “necessarily” invoke obligations to collect and produce the referenced document.
Continue Reading Court Finds Hyperlinked Documents Are Not Attachments for Production Purposes

The new year has brought one of the most comprehensive court decisions yet reminding attorneys in no uncertain terms of the rules mandating fundamental competency in the treatment of electronically stored information (“ESI”). Falling short may get both lawyers and clients sanctioned.

In January 2021, U.S. District Judge Iain Johnston issued his opinion in DR Distributors, LLC v. 21 Century Smoking, Inc. (N.D. Ill. No. 12 CV 50324) coming down hard on defense counsel for failing to possess the skills and diligence necessary to competently meet their ESI discovery obligations. In a detailed opinion that is well worth reading (if you have an hour or two), the court recounts the many e-discovery “missteps, misdeeds, and misrepresentations” both of client and counsel that culminated in the issuance of harsh evidentiary and cost-shifting sanctions on each.Continue Reading Off the edge of the E-Discovery map, there be monsters! Federal court issues epic opinion sanctioning counsel for failure to show competence and diligence in meeting ESI discovery obligations.

Crowell & Moring’s E-Discovery and Information Management (EDIM) group is pleased to announce the introduction of “CMD,” an integrated E‐Discovery solution. CMD provides access to cutting-edge analytics, processing and hosting technology, AI-driven workflows combined with our Chambers-rated legal advocacy, consulting, review and professional services to accelerate and improve data analysis.

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