Special to the DCN/JOC: The lingering impact of COVID-19 on eDiscovery

One of the many impacts of the COVID-19 pandemic is the change in business communication patterns.

During the pandemic, many organizations shifted to remote work and implemented new technologies and practices, including the use of messaging and collaboration applications such as Teams or Slack. These communication tools often replaced in-person conversations, creating additional sources of digital evidence.

There are some unique considerations when reviewing short form messages for litigation or regulatory requests.

First, the informality of these types of communications, including the use of jargon, shorthand, emojis, and the increased likelihood of typos, impacts the ability to conduct meaningful keyword searches.

Rather than filtering the document set through keyword searches, which retrieve exact matches, parties should consider analytical tools such as concept searching to identify conceptual matches.

There are also technical considerations such as how you will “unitize” (parse) the chat messages. Having each line of a chat message constitute its own document is clearly unhelpful. Similarly, putting a year’s worth of chat messages into a single document is also impractical.

A decision will need to be made on the length of time or size of a chat conversation that will constitute a single “document.” Each case is different and the decision will depend on the data and the custodians’ patterns of communications.

In addition to the increased use of short form messages, many organizations replaced in-person meetings with video meetings through programs such as Zoom, Webex or Teams.

If any of these virtual meetings are recorded, litigants should consider whether this data needs to be preserved, collected, reviewed and produced in the litigation. These new data types and sources should be discussed during discovery planning.

Finally, it is important to note that at the beginning of the pandemic, organizations may have scrambled to shift to work from home practices. During this transition period, employees may have had to use personal devices until corporate computers could be delivered, thus creating and storing data in multiple locations.

Some employees may also have experienced connectivity issues causing them to save data on local drives as opposed to corporate servers. These employee practices should be considered when looking to identify and preserve sources of potentially relevant information.

The pandemic has forced change in many businesses’ communication patterns and these changes should be considered when identifying, preserving and reviewing sources of potentially relevant information. It is important for parties to discuss and consider these issues during discovery planning.

Candice Chan-Glasgow is director of review services and counsel at Heuristica Discovery Counsel LLP, which has offices in Toronto and Calgary. It is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.