e-Discovery is now an essential tool for all lawyers. Even if you are not specifically in an area of law that would be thought of requiring eDiscovery knowledge, you will quickly find that it is an asset. It allows you to locate, access, search and produce electronic data for litigation, audits or record requests.
Two very important parts of e-Discovery are emails and other communication medias.
Emails
Even with the growth of social medias, such as Snapchat, Instagram, Facebook and text messages, as popular as they are, email is still the most popular way to communicate in companies.
According to the Radicati Group, by the end of 2021, the number of worldwide email users will be over 4.1 billion. Approximately half of the worldwide population used email in 2017. Also, the average person received 20 emails a day in 2018. To put this into context, if your company had 1,000 employees, they would have sent 40,000 emails in just one day! This causes hundreds of terabytes of data to accumulate within a brief time period.
When a company is warned about a litigation, or even internal audits, that company might spend millions of dollars if they do not take the proper actions to find the custodian(s) and their emails for which they are searching. Also, if they do not have the proper implements in place to keep these emails, the results can be disastrous for the company.
Retention
It is an asset for a company to have a Retention Policy in place. Even when an employee deletes an email from their inbox, it is not actually deleted until a certain period of time passes that the company has decided within the said Retention Policy. It may be every 3 months, it could be kept on the cloud eternally… this depends on your company’s size usually. This policy will protect you when you are in litigation and no longer have an email due to it being deleted via the retention policy that you had at the time.
When trying to find the specific information for these cases, a third party or in-house team can take the emails from the cloud for specific date ranges, emails between specific custodians and even searching any personal custodian email addresses or specific search terms… Such as words within the emails, and subjects. But when a company has a legal hold in place and an employee at the company deletes an email, it can potentially be collected during this time and can be vital for the case.
Knowing as much information as possible, to inform the individuals who are doing the search, can save time and money with not having to go through specific time frames that would not have been useful for the lawyers who requested this information. Knowing as much information as possible continues after the process of collecting the required emails has been completed. The process of email analysis and reviewing the custodian email date range batches is so useful! You can do an analysis to see spikes in amounts of data being sent during a specific period, such as monthly. This can insinuate several things and can lead into further investigations.
Social Medias
While email still plays a vital role and is the leading media for communication, and e-Discovery has determined ways in collecting this media cost effectively and mostly with ease, other forms of communication medias still need to be considered futuristically.
With up-coming generations of individuals who have been raised with multiple communication medias, you will still see non-email communications appear even in internal audits. However, social media continues to be a challenge for e-Discovery.
Social media platforms quickly rise and fall, not everyone uses the same medias. Medias like Snapchat can have images and conversations disappear within seconds. As a lawyer, it is important to find out answers as to which social medias are going to be implicated, if you have access to the original posts/messages and if not, how the messages/posts were retained. Even then, you will have to prove the individual actually posted / sent it themselves. This has been proven in the past by assessing the way the individual in question types, building connections proving that it is in fact their social media platform, and having others who had witnessed seeing the post or message being sent that is in question of authenticity.
Conclusion
Regardless as to whichever communication medias you encounter as a lawyer, the most important things are to ask questions, know about the case as much as possible and know the processes that are going to be involved. Finding out the date ranges, using search terms, and looking into the correct social medias is vital. Social media will not be terminated any time soon nor email.
“There are two sides to every story, and then there are the screenshots.” – Unknown
