In our last post, we discussed ten recent case law rulings involving mobile device discovery. Chat and collaboration apps are another way in which corporate communications have evolved in recent years. And the ways we communicate can be quite diverse!
Not only that, but the way we use those chat and collaboration apps is important. Failing to consider regulatory requirements or downstream information requirements can cause issues for the organization that can cost millions of dollars. Let’s look at some considerations for using chat and collaboration apps in the workplace.
Types of Chat and Collaboration Apps
When we talk about chat apps, we think of apps like Snapchat, WhatsApp, and Google Hangouts. When we talk about collaboration apps, we think of apps like Slack, MS Teams, and Zoom. But the reality is that there are many more apps out there than just those few and their capabilities overlap considerably. Here are examples of categories of chat and collaboration apps and examples of each:
- Instant Messaging (IM) Tools: IM tools are types of chat tools and there are dozens of IM tools out there that support individual and group communications. Examples include: Snapchat, WhatsApp, Google Hangouts, Facebook Messenger, Telegram, Signal, Discord, WeChat, and DingTalk (both of which are popular in China) and many more.
- Project Management Tools: These tools support collaboration on projects, but they also include chat capabilities too. Examples include: Slack, Microsoft SharePoint, Basecamp, Trello, Asana, and com.
- Video Conferencing Tools: These platforms make meetings and seminars possible from anywhere, ranging from one-on-one meetings to a conference with as many as hundreds of participants. These tools also can include chat and/or PM capabilities too. Examples include: Zoom, Microsoft Teams, Google Meet, and GoTo Meeting.
- Cloud Storage Tools: These tools support file sharing and productivity. Examples include: Dropbox, Google Drive, and Microsoft OneDrive.
- Whiteboard Tools: Online whiteboards for meetings. Examples include: Microsoft Whiteboard, Google Jamboard, Mural, and Miro.
- Wiki Tools: Tools for creating a knowledge base website. Examples include: Confluence, Slab, and ai.
These are just a few examples – there are many more out there. Each app works differently, stores information differently and has different capabilities – many of which overlap. For example, you could just as easily put Microsoft Teams into the instant messaging or project management categories. The downstream considerations for using these various apps are as diverse as the apps themselves.
Considerations for Using Chat/Collaboration Apps in the Workplace
With so many app options to choose from to support so many different needs for collaboration, it’s important to be aware of key considerations when selecting and using them. Here are three considerations for using chat/collaboration apps in the workplace:
One of the biggest challenges is the ad hoc use of chat and collaboration apps within an organization. With many of these apps supporting a simple download to start communicating, the proliferation of them can quickly become overwhelming. For example, it’s not uncommon for organizations to use Slack, Teams, and Zoom – even though they have overlapping capabilities – based on the personal preferences of executive leaders, department heads, or even individual employees.
Every app could become a different source of ESI in discovery, so it’s important to have a policy as to which apps are approved for use and guidelines for how they should be used, including retention policies for the data they contain. You can no longer assume that these apps won’t contain discoverable data – they regularly do.
Ephemeral messaging apps like Snapchat, Signal, and Telegram have become popular in and out of the workplace – in part because they automatically delete messages after a period of time. Some provide options for keeping the messages indefinitely, but others do not. Just about any messaging app can be set to automatically delete messages, so they can become ephemeral messaging apps too.
The use of these apps may be acceptable in normal course of business, but their use could lead to spoliation of evidence once there is a reasonable anticipation of litigation. If you’re going to use ephemeral messaging apps that don’t provide an indefinite retention option, be prepared to suspend their use at litigation time. Or better yet, avoid using them in your business. For those that do provide an indefinite retention option, be sure to suspend automatic deletion when litigation hits.
When using these apps, it’s also important to consider regulatory requirements associated with their use and whether recordkeeping requirements are being met.
Recently, the Securities and Exchange Commission (SEC) fined 15 broker/dealers and one affiliated investment advisor a total of $1.1 billion “for widespread and longstanding failures by the firms and their employees to maintain and preserve electronic communications” particularly for private communications, in which employees communicated via personal text messages and through platforms like WhatsApp. Eight firms were fined $125 million each. Ouch.
Having policies in place that address approved use of these apps and the recordkeeping requirements for using them – plus monitoring for rogue employees that may try to bypass those policies – could more than pay for themselves in terms of potential fines avoided.
The proliferation of chat and collaboration apps is changing how organizations communicate and collaborate, which can lead to numerous downstream challenges if the use of them isn’t effectively managed. Addressing the three considerations discussed above could limit those challenges and literally save millions of dollars in fine avoidance and discovery costs.
With so many apps out there, it’s important to work with experts who understand the considerations for each app and that can work with you to put a policy in place to use them effectively for communications, while having a plan to support downstream requirements too.
Next time, we will look at considerations for discovery of evidence from chat/collaboration apps.
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