Thought Leadership and Industry Trends
Beware eDiscovery Problems with Your Work-Related Apps
By Louis Cona, Forensic Services Manager, CDS.
The good news for small and mid-size businesses (SMBs) is that there are a lot of free and inexpensive productivity and communication tools available to help them run their businesses. The bad news is that many of these tools are not designed to preserve data with potential litigation in mind or if they have the capability, it comes at an extra cost. Many companies do not consider this problem until they are involved in a lawsuit and by that time, the cost is significant to develop workarounds. In some cases, no amount of money can help because the data is permanently lost so it can’t be used in litigation. There are a few best practices that can help SMBs choose their tools more wisely and mitigate these risks:
- Know what tools are being used in the company and to what extent. In smaller companies, employees could be making their own choices based on their personal preferences. That’s a big problem. Companies can’t evaluate the risks until they understand where they have their data and how much of it exists.
- Evaluate data archiving capabilities of each tool before implementation. These can vary greatly. Common tools such as Slack, Skype, WhatsApp, and WeChat have unique retention capabilities and eDiscovery challenges. For instance, the popular group chat and collaboration software Slack does have an eDiscovery and compliance tool, but it is an added expense and it only works going forward from the moment it is enabled. It will not archive existing data. Skype can store up to 30 days of data, before a subscriber must pay for additional storage. Furthermore, in spite of sharing a brand name, Skype and Skype for Business are two distinct applications with different archiving capabilities. WhatsApp allows access to its cloud, but WeChat doesn’t. Note that these capabilities can change quickly as the technology companies update their software.
- Balance cost and risk. For those tools that offer archiving, there is a cost. However, the cost of not keeping that data can be much higher. Your cost and risk increase the more you use these tools and generate data with them. If there is minimal usage and most of those discussions are being recreated in email or elsewhere, then it may not make sense to change your practices.
- Develop appropriate employee and document retention policies.Employees must be clearly instructed in what tools they can use and how to use them. Companies should also establish retention policies that make sense for their business. It’s important to keep data, but there are limits depending on the nature of the business. Keeping too much data imposes its own risks.
SMBs face tough challenges trying to effectively manage their costs while protecting their businesses. eDiscovery is an issue for every company because potentially valuable information is being collected everywhere. Companies need to be aware of their risks and plan appropriately.
If you need assistance with your data collection, contact us for a consultation.