The Evolution of Business Communication

Email has long been the traditional mode of workplace communication and, as a result, a primary focus of data management. In the modern workforce, employees have relied less on email for sharing information and routinely share important, confidential, and even privileged or proprietary data through platforms such as Teams or Zoom. This can be problematic because these platforms combine collaborative messaging, file sharing, video calls, AI-generated meeting summaries, and project management in an integrated environment, often generating voluminous, unstructured data that falls outside the scope of an organization’s usual retention and management practices. Embedded chat functions in various workplace applications complicate matters further, as data can be scattered across multiple platforms with varying retention and disposal processes. Evolving your Records and Information Management (RIM) policies to account for the retention and management of these communications is critical.

What the Courts Are Saying

Courts have ruled that a company’s obligation to preserve data extends to these newer platforms. (See Benebone LLC v. Pet Qwerks, Inc., No. 8:20-cv-00850-AB-AFMx (C.D. Cal. 2021), where a California court held that a company had an obligation to preserve and produce its internal Slack messages, finding them within the scope of discoverable ESI.) Other courts have followed suit: in 2023, a California federal court imposed sanctions for spoliation for failure to preserve internal chat communications, and an Ohio federal court ordered production of complete Slack conversations, finding such messages are most analogous to text messages and that surrounding context must be produced. These decisions make clear that embedded chats, where relevant to litigation, must be preserved.

Adjusting Your RIM Program

You might be wondering what can be done to prevent exposure to these risks. It’s simple – update your RIM program to account for all forms of communications. Start by taking inventory of every messaging platform your company uses. Update your retention policies to include these platforms, bearing in mind each application’s unique characteristics such as threaded conversations, emoji reactions, and ephemeral messages. Litigation holds should also be updated to account for the technical realities of these platforms, including limited native retention windows and the risk of automatic deletion. Finally, organizations should invest in tools that can adequately collect data from these platforms to satisfy preservation obligations. Failure to modernize your data management practices could cost you significantly more in the long run.