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Yes, Chats are Discoverable!

Chats Are Discoverable

Whether for a data breach remediation or commercial litigation, don’t ignore the instant messages and chat programs.

Chats and instant messages are legally discoverable documents just like email, digital documents and all other electronically stored information. This has been true for over a decade but many attorneys and parties seem to still not get it.

For example, Equifax ran into trouble with its recent data breach remediation when it failed to preserve a significant source of the company’s post-incident posture and thinking: its chat messages.  Typically when a data breach is discovered, it is expected there will be an increased stream of internal communications between employees at the affected company.  It is unfortunate that Equifax, as reported by Kate Fazzini of CNBC on March 7, 2019, failed to think that company chats and instant messages were discoverable.

Because of that failure, the company is now facing even more intense scrutiny and potentially significant added costs through sanctions and other soft costs.

We have, for many years now, advised our clients – particularly when facing unexpected events such as a data breach, environmental accidents, and other similar happenings – to inquire of their employees whether they use social media or chat apps, and if yes, did they discuss the event using those apps and, further, which apps were used.

The ask is done through either a custodian interview or the use of a custodian questionnaire. That inquiry then leads the legal team to actively pursue the preservation and collection of data from those locations/resources. Contemporaneous discussions about an untoward event are very rich in thought and prescient regarding what happened, indicating the first take on how the company will proceed in responding to the event, particularly when the discussions are among those most involved with developing the matter.

It should go without saying that all likely relevant data – including chat and instant messaging texts – should be preserved. From an eDiscovery cost perspective, preservation (and collection) is the least costly portion of the process. And, further, an appropriate legal hold should be issued virtually immediately whenever there is such a high-profile event. It is unreasonable to assume that such events will not lead to litigation. That is the test: “reasonably anticipated” that litigation will occur.

In today’s environment, all attorneys should be cognizant of all technology resources and data sources available for communications use, whether chats, instant messaging or other such technologies and advise clients that they are fair game and subject to preservation in any matter. And, if not aware, they should retain the services of a leading eDiscovery vendor that is knowledgeable about such issues and who can also advise and assist in data location identification and collection.

Barry Schwartz, Esq., CEDS

Barry Schwartz, Esq., CEDS

Barry Schwartz, Esq., CEDS leads the advisory services group at BIA using his 25 years of experience as a litigator and consulting expert witness. As a client-facing senior advisor, he assists clients in a wide variety of areas including litigation and discovery, data retention & management, document review, regulatory compliance, privacy and cybersecurity.