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April 7, 2023

Communication data in eDiscovery is no longer limited to emails. With the proliferation of messaging apps and social media platforms, people communicate in various ways. This variety has created unique challenges for legal professionals who need to gather and analyze electronic evidence as part of their investigations and litigation. How are people communicating in the business world, and what does this mean for eDiscovery?

Sanctioned apps for employees

Messaging apps such as Slack, Microsoft Teams, and WhatsApp have become increasingly popular in the workplace. These apps are often used for real-time communication, collaboration, and file sharing. They became critical when businesses shifted to remote work and online sales over the past few years. Organizations or teams subscribe to collaboration and communication tools to increase efficiencies. Here are some details about how employees are using short message applications internally:

Team communication: According to a 2021 survey by Software Advice, 58% of employees use Slack for work-related communication. Microsoft Teams closely follow that.

Project management: Many companies still use Excel spreadsheets to manage projects. However, 23% of organizations use project management software. As of 2020, Jira led the project management software market with a 36.57% share, followed by Microsoft Project at 19.78% and Smartsheet at 5.17%. (Wellington, 2020) Asana, Trello, and Microsoft Teams have all gained traction in the past two years. Since they were designed for business use, there are proven processes for capturing their data for discovery. This is not necessarily true for many applications used for personal communication.

Personal social media adoption

Millennials are the largest workforce generation, and they are known for their love of technology. According to a 2021 Pew survey, 91% of Millennials in the US and 93% worldwide use social media. The top three social media platforms among Millennials in the US and worldwide are YouTube, Facebook, and Instagram. Twitter is number four in the US, and WhatsApp holds that spot worldwide. The usage numbers are staggering: there are approximately 500,000 tweets and 65,000 Instagram posts made every minute worldwide.

While these familiar names dominate the market, for a short while, at the beginning of 2023, Signal became the most downloaded app on the AppleStore. Signal is an encrypted messaging app that has gained popularity in recent years because it incorporates vital privacy features: Signal messages are never stored on the platform’s servers and can only be decrypted by the intended end user. Journalists, activists, and others often use it to communicate sensitive information securely. The platform is so secure that in response to a subpoena, the only information the company had about the target account was the dates for account creation and last activity.

Blurred lines create problems

With the almost ubiquitous use of social media in Millennials’ personal lives, it stands to reason that usage would creep into their business communications, even when these apps are not explicitly sanctioned. According to a survey by Software Advice, 53% of millennials prefer to use instant messaging for work communication. This unsanctioned usage is exacerbated by bring-your-own-device (BYOD) policies and apps like Signal. So what does all of this mean for litigation? It means that more and more relevant data is only stored on employees’ mobile devices and intermixed with their personal information. First, this begs the question of “custody and control’ of the data by the employer. And, even when an employee cooperates, law firms and their service providers must be able to collect that data from cell phones and iPads while adhering to privacy regulations and the employees’ privacy preferences. ModeOne has designed its smart device collection tool to solve this problem. And we continuously update our software to accommodate collection from new social media platforms.