The Sedona Conference^® (TSC) has published for public comment its Commentary on Discovery of Collaboration Platforms Data.

The Commentary on Discovery of Collaboration Platforms Data has been released by TSC’s Working Group 1 on Electronic Document Retention and Production (WG1). It is intended to provide organizations, lawyers, and the judiciary with foundational information regarding collaboration platforms, and to provide guidance on addressing legal issues and challenges that are likely to arise regarding the discovery of collaboration platform-related, electronically stored information (ESI).

The 37-page Commentary (available here for free download) includes four main areas of discussion as follows:

Characteristics of Collaboration Platforms

This section describes these applications as enabling multiple users to share information and work collaboratively, often simultaneously, through features like drafting, editing, sharing various content types, and live conferencing. Communication within these platforms can occur via email, chat, video/audio, wikis, blogs, social media, and document comments. Examples include Microsoft Teams, Slack, and Google Workspace.

A key characteristic is the dynamic nature of content, where documents can be altered by multiple users and conversations can shift across different applications. Furthermore, the traditional concept of a document may not always apply, as content can be structured data and chats can encompass various topics. Collaboration platforms are often considered noncustodial sources of information, and they frequently utilize hyperlinked documents instead of traditional attachments, referencing content stored elsewhere that may change over time. Finally, these platforms often act as portals to other applications, where data may actually reside (e.g., hyperlinked files).

Common Electronic Discovery Issues

This section is the bulk of the Commentary and highlights several unique challenges that arise when seeking electronically stored information (ESI) from collaboration platforms. One of the primary issues is determining whether to treat these platforms as custodial or noncustodial data sources. While individual users may have activity within the platform, the shared workspaces are often considered non-custodial, like databases. Preservation can be challenging due to the proliferation of shared workspaces, the existence of private channels, and the fact that relevant data may be stored in external applications linked to the platform (here’s an example of that). Furthermore, collaboration platforms commonly use hyperlinks instead of traditional attachments, which complicates the notion of document families and requires understanding how hyperlinked content is stored, versioned, and potentially altered over time.

Collection of ESI from collaboration platforms presents its own set of hurdles, as relevant information may be scattered across the platform itself and various integrated or external applications. As the Commentary notes (and many of you know by now or I’m not doing my job 😉), finding and collecting hyperlinked documents, and associating the correct version with a contemporaneous communication, can be particularly complex. Once collected, culling, searching, reviewing, and producing this data also pose unique challenges. Decisions must be made regarding unitizing continuous chat logs, effectively searching informal communications that may include emojis and shorthand, and handling comments embedded within documents. Finally, collaboration platforms raise novel evidentiary issues related to authentication and hearsay, as well as privilege and work-product concerns in the context of dynamic documents and informal communications, and various privacy considerations across different jurisdictions.

Information Governance Considerations

I’m glad they included this section, which emphasizes the critical need for organizations to apply data and information governance principles to the use of collaboration platforms. Before deployment, organizations should thoroughly understand these tools, including their fit within business processes, information systems, and their electronic discovery capabilities and limitations at various license levels, with involvement from the legal department in the vetting process. Couldn’t agree more – it’s important to get a handle on these platforms up front, not when a case is filed.

A well-defined information governance program for collaboration platforms should align with organizational objectives and address business, legal, data security, and regulatory requirements, including considerations for information retention, preservation, and legal hold functionalities. That includes clear records retention policies aligned with broader organizational policies, legal hold implementation strategies, understanding data storage and access, and best practices for data collection and extraction. Perhaps most importantly, it includes communicating acceptable use standards and providing education to users, as well as creating a long-term retention strategy that considers various factors like business value, legal obligations, privacy concerns, and technological capabilities.

GenAI Considerations

Didn’t think they would leave that out, did you? 😉 This section addresses the growing integration of GenAI capabilities into collaboration platforms, with examples like ChatGPT and Microsoft Copilot being highlighted, which do things such as drafting communications, summarizing conversations and meetings, creating reports and action item lists, and assisting with document editing within platforms like Microsoft Teams and OneDrive. So, organizations need to be aware of whether these GenAI features were active during relevant time periods and if they have generated potentially relevant and responsive data for discovery purposes.

The Sedona Conference Commentary on Discovery of Collaboration Platforms Data is open for public comment through May 16, 2025. Questions and comments may be sent to comments@sedonaconference.org. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version. You know the drill. 😉

So, what do you think? Do you think the Commentary on Discovery of Collaboration Platforms Data will help organizations address challenges with these platforms? 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.