Data was once tangible and tactile. Managing physical files, paper documents, and standard records was relatively straightforward. Today, however, those sources have grown increasingly complex, emerging from various platforms, devices, and systems. These include social media, cloud storage, and Internet of Things (IoT) tools, among others.
On a recent webinar for ACEDS, which you can watch here, we discussed how they differ from traditional records because these sources are dynamic and multidimensional, designed for functionality rather than easy access for litigation.
Understanding and categorizing these data sources are key steps in modern e-discovery management. “We offer CLEs and presentations to clients on emerging topics because education on potential challenges with data sources is essential,” noted Scott Cohen, Managing Director for eDiscovery & Information Governance and Practice & Client Services at Winston & Strawn.
Purpose-Built Platforms and the Accessibility Challenge
Most modern information sources were created with functionality in mind, not e-discovery. For instance, collaboration tools like Slack or Microsoft Teams prioritize user communication and real-time updates over data accessibility. This makes data that exists outside formal platforms or from alternative data sources, such as messaging or encrypted mobile apps, much more challenging to preserve and collect. In many cases, tailoring these tools to support e-discovery requires significant adjustment, if possible. “Try to look around the corner and figure out what data is coming,” recommended Sonya Judkins, Senior Manager, Discovery & Information Governance at T-Mobile.
Communication and Transparency in Managing Data Expectations
Clear communication and education are critical to navigating the challenges of collecting information from non-traditional data sources. This should include explaining the technical limitations of accessing specific data and the time and cost considerations involved. Clients and legal teams must understand the scope and constraints of e-discovery for each type of data. “Transparency is key,” said Cohen. “We do not wait until the last minute to communicate items that might affect cost, timelines, or risk; we are very clear about those issues and provide defensible, cost-effective responses,” he added.
Conclusion
Trust and transparency are paramount in e-discovery. The more information legal teams have about data sources and accessibility, the better their decisions will be in managing the process, including balancing the benefits of retrieving records against the logistical challenges. “You can make yourself the star of your organization by not being afraid and asking questions,” Judkins remarked. As emerging, alternative, and off-channel data sources grow, a uniform and comprehensive approach to collections will allow legal teams to tackle modern complexities with greater confidence and control.
