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Overcoming eDiscovery-related chat data challenges: Part 1 - the basics

Chat applications are a fact of life now.  Many employees in all sectors are using it to communicate and collaborate. The prevalence of this data type means that searching only standard document types such as emails is no longer sufficient if trying to unearth evidence in an investigation. The preservation, collection, review and production (to the authorities) of chat data pose unique challenges.

Through this series of blog posts, we will share some of our eDiscovery-related experiences of working with chat data and will provide tips on what to consider before and during an investigation.

Types of chat

Enterprise Chat and Collaboration Platforms

There are many chat platforms in use in workplaces today, each of which brings unique considerations. Some of the popular business chat tools that we encounter during investigations extend beyond basic chat functionality to include features such as collaboration, productivity tools and access to financial market data.

Enterprise Platform

Features

Microsoft Teams

Allows users to chat, call, video conference and collaborate. Often used in larger businesses that already subscribe to Microsoft 365.

Skype for Business

Part of the Microsoft Office suite, it allows users to chat, call, videoconference and collaborate. Often used in medium to large businesses which have not yet transitioned to Microsoft 365 cloud. Can also be found in Microsoft 365 organisations for legacy data or where Microsoft Teams has not yet been deployed.

Slack

Allows users to chat, call and collaborate within organised spaces for files, tools and people.

Slack has various licensing tiers including Free, Pro, Business+, and Enterprise Grid which offer different features including export capabilities and custom message retention.

Bloomberg Terminal

Used by financial institutions, Instant Bloomberg within Bloomberg Terminal allows collaboration between users and trading partners. All chats are archived and auditable, enabling firms to meet compliance requirements.

Google Chat

Developed by Google for its cloud-based Workspace environment. Initially designed for business environments, it has since been made available for general consumers.

Application Chat Platforms

Other popular chat data platforms include applications on mobile devices that are often used both in professional and personal capacities, such as WhatsApp, Facebook Messenger, Apple iMessage, Telegram, Signal, Google Chat, WeChat and Snapchat. Many of these applications allow chats and calls (including video calls), with some platforms’ functionality extending beyond these traditional features. For example, WeChat features microblogging and payment transaction functionality.

While many people think of these applications as personal accounts, some of these applications, eg WhatsApp, Google Chat and WeChat, are also available for corporate-wide use akin to the enterprise platforms detailed above.

Some of these channels may be authorised by an employer, but some may be used unofficially by staff for business purposes despite not being authorised to do so. Businesses may still be able to access these communications in the context of an investigation. See: https://www.allenovery.com/en-gb/global/blogs/employment-talk/can-employers-refer-to-employees-whatsapp-messages-to-bring-misconduct-proceedings.

Issues with accessing historic chat messages

Investigations always require analysis of historic communications. The ability to do this with chat varies according to its archiving capabilities.  These can often be customised by users. With WhatsApp, users can choose to synchronise chat data to Google Drive, export chats or delete chats without archiving. Some chat platforms incorporate ephemeral or disappearing messages, with the automatic deletion settings controlled by users.  Signal has a setting which allows messages to be deleted from both senders’ and the receivers' devices based on a chosen timeframe of up to 4 weeks.

These features increase security and privacy for users, however can give rise to employment issues, as well as regulatory problems for businesses that are required to keep business communication records for certain periods of time. The technology also makes it more difficult for the chat providers to share data with the authorities and relies on the willingness of the employee to grant access to their data.

Regulators clamping down on use of chat messaging

The financial repercussions may sting. In December 2021 and September 2022, US regulators announced settlements with twelve financial institutions and assessed financial penalties totalling USD2 billion to resolve investigations by the SEC and CFTC into the institutions’ failure to monitor and preserve employees' text and messaging app business communications.   Under the US DOJ’s recently revised Evaluation of Corporate Compliance Programs policy, prosecutors will not only look more closely at firms’ ability to produce data stored on third party messaging applications, but will also consider how usage policies are communicated to employees and whether such policies are consistently enforced. There has also been recent enforcement action in the UK.

Our next blog will outline practical advice for businesses on how to manage these risks.

Allen & Overy’s in-house eDiscovery team offers assistance in navigating electronic data discovery. Working as one team with our lawyers, the eDiscovery team leverages technology to get to the facts of a matter more efficiently. This translates to better, quicker and more informed legal decisions and therefore better value for our clients. To learn more about the services we offer, please contact Christina Zachariasen or Emma Wiltshire.

 
 

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