If you’ve struggled through a Zoom meeting this week, you’ve got company. By my rough estimation, at any moment there are at least a million people talking on Zoom while muted—and that’s just for the United States alone. The video conferencing app has become one of the leading technologies for keeping in touch during a period of social isolation.
But don’t take my word for it. Take Google’s. As our first point of reference for just about anything, Google knows what’s on the world’s mind. And their Google Trends website placed Zoom as the #1 trending term on Monday, with more than 2 million searches. The term peaked the previous Friday, March 20th, hitting 100 out of 100 in Google’s interest tracking.
And Zoom wasn’t alone. Following behind were Google Meet and Microsoft Teams, as the 12th- and 15th-most trending searches, respectively. Stacked between them and Zoom was a list of searches connected to the increasing cascade of shelter-in-place orders.
There’s no question what’s on people’s minds right now: the current health crisis and the tools needed to get through it. For millions of people, those tools are new forms of communication and collaboration software: Zoom and Teams, yes, but also Slack, G Suite, Skype, Loom, and others. And it’s likely that these tools, and the changes to work processes they allow, will outlast this particular moment in time.
Why does that matter to legal professionals? When communication changes, discovery changes—and these new forms of communication are likely to pose new and interesting challenges in the years ahead.
As use of these collaboration tools takes off, they’re creating an entirely new world of electronically stored information that will, in time, become the subject of internal investigations, litigation, and regulatory requests.
“We have an obligation as lawyers to stay abreast and one step ahead, because that’s where claims are won and lost: on the communication record.”
Now, more than ever before, legal professionals need to prepare themselves to move away from traditional discovery processes designed for discrete documents and begin adapting to a world where communications are scattered across multiple platforms and multiple media types. Email, yes, traditional, discrete documents, of course—but also chat in Slack, video recordings of Zoom meetings, instant messages in Hangouts Chat, collaborative, constantly changing Google Docs and Google Sheets, project management logs in Jira and Asana, and dozens of others.
Smart litigators need to keep their eyes on these new data sources, as they can often provide the informal, off-the-cuff communication that can have significant impacts on a matter. “The ways in which people are communicating have changed,” as David Slarskey, a litigator in New York City, explains. “Whether Slack or other modes, you need to look at all the ways people are communicating to get a full picture of any particular claim.” In a recent matter, Slarskey relied on Slack data during discovery to uncover communications that would have been missed otherwise. Once he overcame objections to producing Slack data in discovery, the information turned out to be essential to obtaining a favorable settlement.
“I think you’re really doing a disservice to your clients if you’re limiting yourself to emails,” Slarskey says. “We have an obligation as lawyers to stay abreast and one step ahead, because that’s where claims are won and lost: on the communication record.”
But for all the evidentiary value new data sources can add, they can also pose significant challenges when it comes to its preservation, collection, and review.
For legal professionals handling the preservation of such data, the biggest challenge can simply be knowing what data is out there. That means understanding if your teams, or your client’s teams, are managing projects on Jira, conducting performance reviews via Zoom, planning strategy on Slack. Keep in mind that your preservation obligations might not end with company accounts, either—”possession, custody, and control” can extend to third-party accounts and personal devices as well.
Once data sources are identified, you’ll need to dive deeper to determine what data can actually be preserved from that source, whether you’re responding to anticipated litigation or simply creating a retention policy. In Slack’s default retention setting for messages, for example, is to retain everything, forever. Slack also allows you to retain messages, but revisions (which could lead to potential spoliation claims), delete messages and revisions after a specific period, or let users set their own, individual retention policies (see previous parenthetical.) But Slack isn’t just messages! It can also be used to share files directly, which requires its own, separate retention settings. (We’ve released a full guide to Slack discovery to help you make sense of it.)
For video conferencing, Zoom allows recording of meetings for all paid plans. Plan administrators can determine whether to allow participants to record or even to make recording mandatory for all users. Zoom’s settings offer a host of options that can impact what data is preserved, as well: Do you record video or just audio? Do you record only the person speaking or every attendee? And that’s just the start.
“The key is understanding how your company or client communicates, then working through the data sources that are involved.”
Unlike Slack, where your message data stays with Slack, Zoom recordings can be stored on individual devices or saved to Zoom’s cloud storage. And that data can pile up quickly. Their top-tier plan, for example, is designed for three terabytes of monthly video storage.
For each system, there’s a new set of settings and retention policies to be aware of. The key is understanding how your company or client communicates, then working through the data sources that are involved. (To learn how companies are navigating information governance and new data sources, check out this interview with James Sherer, Aaron Singer, and Ben Barnes from a few months back.)
If preservation can be tricky, collection often is not. Many of these cloud-based communication tools make it relatively easy to obtain your data, though again there are nuances around plan types and settings. In Slack, for example, data can be exported quite easily by an account administrator—just navigate to your workspace settings and select “Import/Export Data”—but what data is available for export will depend on your plan type.
This is not information you can just dump into a review platform. You’ll need a discovery software that knows how to make sense of that data.
Zoom, too, makes it relatively easy to collect data. When cloud recording is enabled (or mandated) recordings can be downloaded directly from Zoom. The platform will also list local recordings on the individual account level. Once downloaded, those recordings will typically include an audio file with just the sound, a video file with both sound and video, and a text file of any chat messages that were exchanged during the meeting.
This is not the mess that Slack data is. These are common file types that can be easily used. But, you’ll want a platform that allows you to review video and audio files natively in-app, so that they will not leave your secure, closed-loop environment.
Here’s one thing you can be sure of with new data sources: as with data of old, most of it will be junk. Of course, you still have to cull through the unresponsive stuff. And there’s tons of that.
In the near future, discovery platforms are sure to be as crammed with irrelevant meeting videos, unrelated Slack chats, and needless Teams data as they are with duplicate docs and spam emails today.
With new data types, though, much of that data is quite hefty. At these sizes, a recording of a single meeting can easily be one gigabyte of data alone. That’s the approximate equivalent, in data size, of about 20,000 pages. But many discovery services still operate on a per-GB hosting fee model. As data sizes increase, those costs skyrocket.
It’s a model that, we’ve argued, is both counterintuitive and, ultimately unsustainable. Counterintuitive because cloud storage is cheap. Dirt cheap. Unsustainable because, well, a team with 1 terabyte of active data, getting charged $30 per GB a year will end up spending $360,000 on hosting alone every year. Even when steeply discounted, those fees pile up quickly. The model no longer fits.
We are, indeed, in interesting times. Many of the technological shifts that have been slowly playing out over years are now being accelerated—rapidly. You don’t need to turn to Google to see that. Simply look around at your teams and your colleagues, as they adapt new ways of communicating and new ways of doing business.
“Legal professionals can start getting ahead of these changes today. Indeed, it’s our responsibility.”
These changes will certainly have downstream impacts on how discovery and investigations are done—significant ones.
Adapting to these challenges will require evolving approaches to preserving, collecting, and reviewing data, new technologies capable of handling disparate data sources, and new business models that adapt to growing data sizes.
Legal professionals can start getting ahead of these changes today. Indeed, it’s our responsibility.