The majority of corporate professional knowledge workers shifted to remote or hybrid working in 2020. Working from home has challenged many HR, legal and compliance departments to adapt their policies and acceptable use guidelines. Video online meetings and continuous chat channels are essential tools to keep internal/external teams virtually connected. Prior to the pandemic, most of my clients viewed meeting recordings and multi-party chat conversations as extemporaneous, non-record content that should not be retained unless participants were under legal hold. The cost and burden for retaining these kinds of ESI seemed to outweigh their value as exculpatory evidence or their contribution to the corporate knowledge base. Then I ran into a real world scenario that forced me to rethink that long standing assumption.
SEC Rule 17a-3, FINRA Rule 4511 and other regulations have long mandated 100% communication retention for broker-dealers and other regulated entities. Specialty connectors such as Merge1, Smarsh and Mimecast routed recordings, IMs, text messages and other peripheral communication streams into giant enterprise or cloud archives. Some even ran voice to text processing to support search and compliance filters. All of this is expensive and viewed as a burden with no inherent corporate value.
Teams, Zoom, Google Meet, Otter.ai and more now provide real-time quality transcription in their enterprise license bundles. While there are a lot of hidden gotchas and technical hurdles for non-regulated companies to shift to 100% retention it is now a practical option.
So why would you want to keep these informal communications around?
Accessible data is the foundation of corporate knowledge. Meetings are the traditional mechanism for collaboration and decision making. Most knowledge workers invest substantial time documenting and publishing the questions, requests and decisions generated in meetings. Legal discovery is frequently tasked with reconstructing timelines and decision factors to retroactively defend actions. Enterprise analytics promise greater ability to automatically categorize, detect and visualize key topics, sentiment and more.
Employee turnover is higher than ever. In many US companies, departing employee mailboxes, OneDrives and such are dumped on managers. In countries with privacy rights (GDPR) that ESI may have to be destroyed, turned over to the former employee or otherwise processed to remove PII. The effective systemic ‘loss’ of corporate knowledge and history has a real cost in dropped balls, increased onboarding time and failed initiatives.
100% retention can ‘prove a negative’ in EEOC, harassment, wrongful termination and other disputes. I distinctly recall one of my favorite attorneys telling me that you cannot prove a negative defense without having every possible piece of evidence. I was able to provide him and the government every possible formal communication (email), but we did not have all the ancillary communication streams or recordings of the relevant meetings. Today we can search almost every potential interaction and digital footprint(yes, even emojis). I encountered the latter scenario recently that has made me rethink my ‘expire expeditiously’ mantra:
CompanyA Retention & Knowledge Strategy:
- Retain all internal and external Teams/Zoom meeting recordings, transcripts and linked notes/documents to create a knowledge repository as a first-class corporate asset similar to historical formal SEC reports.
- Creation of a complete set of records documenting the company’s evolving strategy, decisions and challenges for continuous analysis and improvement.
- All communication, file and development systems are connected via custom technology for search and analytics. All employees have search access across their own and shared resources based on distinct source access rights.
- Having full recordings of daily meetings integrated with all other unstructured data sources provides management the ability to analyze and address issues as they arise.
Scenario timeline:
- Small tech CompanyA took on a contractor from a potential product PartnerB.
- The contractor was paid by CompanyA for part time work on the mutual product integration.
- CompanyA recognized a potential communication issue between contractor and an employee on their first interaction based on the meeting recording.
- CompanyA management coached both individuals to improve their respective skills and required all future interactions to be recorded and captured by mutual agreement.
- The formality helped with the employee. It did not improve the contractor, who was terminated.
- The contractor continued working for PartnerB.
- The contractor made allegations to PartnerB about the workplace environment at CompanyA.
- PartnerB filed a formal complaint with CompanyA.
- CompanyA categorically refuted the contractor’s claims.
- Informed PartnerB that since the contractor was working remotely EVERY interaction with CompanyA team had been retained and was searchable.
- CompanyA invited PartnerB’s counsel to review all email, chats, GitHub comments, meeting transcripts and more.
- PartnerB and the complaint vanished.
From my perspective, the value from most communications streams outweighs the potential risk unless the burden of retention renders that ESI effectively inaccessible. I would never recommend keeping raw audio of phone calls unless they could be indexed and searched. It takes effort to put the right policies and protocols in place to retain and leverage corporate knowledge. How many companies actually purge enterprise database records? I know many who migrate older or inactive records to long term storage, but none who purge financial records. Maybe it is time to start re-evaluating those short-term expiry policies or at least explore enterprise analytics to identify and harvest long term corporate knowledge from communication streams.
*Case study reviewed and approved by CompanyA for publication.
Greg Buckles wants your feedback, questions or project inquiries at Greg@eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.
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