Where the evidence now lives, and the collection problems it creates.
Esshaki Legal Media TeamCurrent as of June 2023
Business communication has moved from email to messaging and collaboration
platforms, and discovery practice has not fully caught up.
Preservation. Many platforms default to short retention or to user-
controlled deletion. Preservation requires an administrative action to disable
deletion, and a litigation hold notice to custodians will not accomplish it.
Ephemeral messaging. Applications designed to delete messages automatically
present a preservation problem and, where used for business communication after
a duty to preserve arose, a sanctions problem. Enforcement authorities have
treated their use as a factor in assessing cooperation.
Personal devices. Business messages on personal phones are within a party’s
control where the employer has a policy asserting rights, and the collection
raises privacy and, in some jurisdictions, consent issues.
Collection. Platform export tools vary in fidelity. Threading, reactions,
edits, deletions, attachments and channel membership all matter and are not
always exported.
Review. Short messages without context are difficult to review by keyword
and are usually reviewed by conversation rather than by document.
Production format. Agree in the ESI protocol how conversations are unitized
— by day, by thread, by a rolling window — because the choice affects volume,
cost and comprehensibility.