One of the things that is a perpetual challenge in eDiscovery is the discovery of newer data sources. Legal professionals tend to avoid discovery of newer data sources because they don’t have a defined workflow yet. As Dave Ruel from Hanzo discusses, the Federal Rules apply to those data sources too.

In his article Ediscovery: How the Federal Rules Apply in the Digital Age, Dave discusses a few Federal rules, including (of course) Rule 26(b)(1), which establishes the six parameters for proportionality in discovery and replaces the standard that existed prior to December 2015 of “reasonably calculated to lead to the discovery of admissible evidence”. Those parameters are: 1) the importance of the issues at stake in the action, 2) the amount in controversy, 3) the parties’ relative access to relevant information, 4) the parties’ resources, 5) the importance of the discovery in resolving the issues, and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit.

When it comes to newer data sources, like collaboration and other cloud-based apps, Dave identifies a few questions that illustrate the challenge today:

• How do you identify custodians for collaborative data shared between an entire project team?
• How do you scope discovery when custodians aren’t clear?
• Do you have access to data on a SaaS platform? Do you “own” that data? What happens if you stop paying to use a platform with discoverable data on it?
• Is an application’s data automatically preserved, or is it automatically deleted after a certain period? Can you influence either of those processes?
• How much data do you need to export and produce to discern the meaning of messages that are not self-contained but that depend on their context for interpretation?

Questions like these are causing many legal professionals to avoid discovery of collaboration app data in their cases. Don’t believe me? Well, in eDiscovery Today’s 2022 State of the Industry Report, only about a quarter (24.7%) of respondents said they’re discovering collaboration app data in all or most of their cases, even though most of us use them for so many important communications in business today. Hmmm.

The Benebone v. Pet Qwerks case last year where the Court stated “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case” is an indication that courts are going to expect parties to find a way to address newer data sources and leverage technology to do so.

Check out Dave’s article here for more of his observations! These newer data sources are frequently responsive to the case, so you can’t just avoid discovery of them because they’re difficult.

So, what do you think?  Does your organization have an established workflow for newer data sources like collaboration apps? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.