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Context is Key: Reviewing Short Message Data in eDiscovery

Jul 27, 2023

Communication between individuals and organizations is endlessly evolving. For example, the adoption of email more than 20 years ago dramatically increased the pace people could share information and documents. We are now experiencing another critical shift – the rise of chat and instant messaging applications that enable users to communicate and share various forms of data even more quickly, with greater brevity.

What is Short Message Data?

Modern short message data originated in the 1990s via the short message service, (SMS). SMS and its successor Multimedia Messaging Service (MMS), was a quick and easy way to communicate built into mobile devices. Classic SMS\MMS messages exhibited the following characteristics:

  • Can be a maximum of 160 characters long for SMS
  • Utilize the cell network rather than the internet
  • Can include multimedia content such as images and audio moving from an SMS messages to a MMS message, although size is restricted

Today, the average user utilizes multiple internet-based apps every day, including Facebook Messenger, iMessage, Slack, SnapChat, Twitter, WhatsApp and many others. These apps have quickly overtaken the classic plain SMS message in popularity. Messages in these applications are not limited to the short length, are media-rich, and typically include audio/video, images, links to websites, etc. In addition, each application has its own constantly evolving format, meaning no standard feature set, or output format exists between any of the short message applications.

Short Messaging and Business

The business use of short message data is on the rise. Combining high open rates, universal receiving capability, and the always-present nature of mobile devices, short message data has proven to be an effective way for companies to communicate.

In addition, the growth in remote work has dramatically increased the use of platforms like Slack and Microsoft Teams, helping employees to collaborate in real-time. However, like text messages, Slack messages are often short and form part of a larger conversation. As a result, the best way to understand these messages is to evaluate them in the context of the messages surrounding them.

In business settings, the actual conversations often happen in the parallel, as an extemporaneous trail of short messages, as opposed to more formal email discussions. Short messages are ubiquitous, candid, informal, concise, and more likely to draw a quick response. Under Rule 34 of the Federal Rules of Civil Procedure, “electronically stored information” (ESI) is discoverable if it is “stored in any medium” from which it can be obtained “either directly or, if necessary, after translation … into a reasonably usable form.”  In other words, short message communications are subject to discovery by opposing parties involved in litigation and investigations.

Retaining context when reviewing messages

How do we understand the full meaning of a message? Keeping the context of a message intact while weeding out the larger collection of unrelated data is extremely valuable to legal teams trying to understand and tell a story. In addition, what is done early on in the process can affect the context of a message within the review platform, a challenge technology can overcome.

Courts commonly require the review and production of Slack messages comparable to the search and production of emails. Technology can significantly reduce the volume of reviewed messages by filtering data according to channels, users, dates, and keywords. The same issue or conversation could transition across different communication channels.  For example, a conversation in Slack could transition to a SMS message, and then an email related to the text is sent – now an issue is being discussed on three separate channels.

Generally, when producing or requesting short messaging communications in discovery, parties should consider:

  • Messaging apps have made native format somewhat meaningless. Instead, requesting a “searchable format” that preserves readability and hallmarks such as emojis and media, is critical.
  • Because apps have various message formats, there’s no ideal form of production. Therefore, parties must agree on forms of production early on in the discovery process.
  • Many application types can be used to communicate between teams, these may be collaboration\chat platforms, social media posts, or ticketing systems. Ensure the output format is suitable, and contains all of the information/metadata required to conduct your review.
  • The general consensus seems to be that a days-worth of messages will potentially provide adequate context, but agreeing on this early is important to avoid issues.
  • Ensuring attachments (images, gifs, documents) are provided within the conversation and linked to the unitized data.
  • Asking for too much (“all” the messages when threads could last years with hundreds of users) is a tactic likely to backfire. Instead, limit production requests to items pertinent to the case.

There is much diversity and divergence in how people use modern communications media like short messaging. However, if you’re treating everything as a document, you will miss crucial subtleties that might prevent you from getting to the context of the message.

More than 650,000 organizations and hundreds of millions of individuals use corporate collaboration platforms and ticketing systems, with billions of users using messaging apps and social media to communicate. CDS Convert allows you to take these complex, varied data formats and convert them into an easily reviewable, user-friendly format that preserves context and maintains file retention and safety policies. If you’re looking for a chat/mobile data solution, request a demo of CDS Convert today.

About the Author

<a href="https://cdslegal.com/team/mark-anderson/" target="_blank">Mark Anderson</a>

Mark Anderson

In his role as Director of UK Operations for CDS, Mark Anderson provides project management and expert consulting through all stages of eDisclosure and eDiscovery. Mark works alongside corporate and law firm clients to identify data for collection and advises on best practices for collection of data, data processing, and document review workflows. He has supervised multi-national teams and has experience working on some of the largest, most challenging matters, including cases involving cross-border issues and the application of technology assisted review (TAR). Prior to joining CDS, Mark conducted forensic collections, assisted with data investigations, and served as a project team lead for multiple international legal technology service providers. Mark holds multiple Relativity certifications including Relativity Master and is an Encase Certified Examiner.