In the days of on-site policy assessment engagements, I loved asking random attendees to step away from their laptops so that I could ‘compliance check’ them. For new or stuffy clients I would ask the MIS/Security stakeholder to pick some random ‘safe’ machines on the floor for the check. Inevitably, every poor admin chosen had stashes of PSTs/MSGs, private gmail mailboxes open, various chat windows, open Face Book sessions and other policy violations. Most found ways around installation rules or other corporate compliance monitors. Paraphrasing Dr. Ian Malcom, “Data finds a way.” This recent Forbes article (4 free article views) has a good discussion of the market forces on Freemium chat services that have become work tools in our remote employee environments. The article chart below caught my eye (red highlights added).
Source graphic from Forbes article: https://www.forbes.com/sites/zakdoffman/2021/01/09/stop-using-whatsapp-after-facebook-apple-imessage-and-signal-privacy-backlash/
The comingling of business and personal conversations/data always poses unique risks and challenges. Putting aside the security issues, let’s look at some of the discovery risks. Freemium chat/collaboration tools rarely have any mature tools or controls that enable companies to meet preservation, collection or processing requirements when the content might be relevant to a dispute. M365 Teams Chat at least stored in a unified architecture that allows admins to set policies and legal to place holds or run collections. That works for internal collaboration, but I frequently encounter custodians who have blurred personal/professional lines and conduct online business with external partners, regulators, professional associations and more. These conversations are rarely relevant to civil litigation. How is counsel to make that relevance decision without collecting, processing and reviewing these complex multiparty conversational streams?
For investigative or potentially criminal scenarios (FCPA) these data streams are a key target source. Investigators are already struggling to access mobile devices for simple text messages and camera photos. Now we see that FBook Messenger and WhatsApp may give access to Teams recordings, meeting files or screenshots. I do not see ‘Easy Button’ answers to these evolving challenges. Instead, professionals will have to allocate time and budget to regularly assess and address new custodian data streams. The speed of eDiscovery Whack-A-Mole seems to be escalating. Have you run into a new app or data stream that is giving you fits? Give me a call to talk shop about it.
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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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