Overcoming eDiscovery-related chat data challenges Part 5: review and disclosure

Understand regulator expectations from the outset

When conducting eDiscovery on a matter which you suspect may lead to an external investigation, consider whether the relevant investigating authority has a defined production protocol and, if so, take that into account when planning the eDiscovery process, even if the authority is not yet involved.  This could save time and expense at a later date.

Over the last 15 years procedural rules have played catch-up with how people communicate, and how businesses create and store documents and data.  Regulators such as the Competition and Markets Authority (CMA) and Financial Conduct Authority (FCA) have published disclosure protocols which specify the method and format of document disclosure, including the treatment of document families, database load file formats, text file encoding and required metadata fields.

A regulator’s specifications may not yet cover chat data explicitly as this is a somewhat newer data type. If a regulator becomes involved, it may be prudent for businesses to work with them during the investigation to discuss a suitable approach to chat data. The same approach holds true for when specifications cover some but not all chat data varieties such as that of the FCA in the UK which currently has a provision for Bloomberg chat data, but not other chat data types more generally.

In the U.S., the Department of Justice (DOJ) production specifications of the Antitrust Division require that “Each instant message (IM), text message, including component messages of chat conversations, should be produced as a separate record”. This does not preclude us from reviewing the same chat communications in a much more efficient manner, however, as reviewing them one text entry at time would put these messages out of their natural context and communication flow.  In a recent matter, Allen & Overy eDiscovery structured the review by daily chat threads, with the individual component chats of relevant daily threads produced to the DOJ.

Use technology to reduce time and cost

Modern eDiscovery platforms offer techniques to handle chat data efficiently. For example:

• chats can be unitised or parsed into day, week or longer time periods to optimize search and review efficiency as well as minimise the need for redaction ahead of production
• chats can be threaded and viewed as if using the native chat application itself, including emojis and reactions
• chats can be filtered in multiple ways, including by participants, events and dates
• some platforms allow message-by-message coding while Relativity’s  “slicing” feature enables chat parsing during review to hone in on only relevant sections. Such features reduce the need to apply redactions to short message conversations and allow you to tailor the content of short message documents to your needs.¹ 
• some platforms include a visual, interactive communication analysis feature that can help to reveal who is communicating with key custodians and how frequently within your chat data set.

Finally, a final few general tips for handling chat data in investigations:

• always discuss parsing ahead of processing to determine whether custodian conversations across different platforms should be merged  and to avoid the need to re-process data
• early case assessment (ECA) prior to review will also ultimately save time and effort, and reduce costs by filtering out files that may not be relevant to the investigation, such as repetitive user avatars.
• as with all data types, consider relevant local laws before transfer; data may be subject to data protection regulations such as the EU's GDPR that may prevent or restrict treatment and movement. It’s best to seek specialist advice if uncertain.

This post is part of a blog series on our eDiscovery-related experiences working with chat data.

• Our first post looked at the main types of chat platforms and some of the issues that can arise.
• Our second post provided tips on what to consider ahead of any investigation commencing.
• Our third post considered identification and preservation of chat data during an investigation.
• Our fourth post considered the collection of chat data.

Speaking to eDiscovery experts early and often is key to ensuring that an investigation runs as smoothly as possible. A&O’s in-house eDiscovery team offers assistance in navigating this complex process. Working as one team with our lawyers, the eDiscovery team leverages technology to get to the facts of a matter more efficiently. This translates to better, quicker and more informed legal decisions and therefore better value for our clients. To learn more about the services we offer, please contact Christina Zachariasen.

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