Modern & Emerging Data Sources (Part 4): Tomorrow’s Most Valuable Data

Note: this post could change the way you think about discovery.

If your practice ever requires you to focus on the type of data that might be potentially relevant or useful to discovery, claims and defenses, consider some self-reflection. How frequently have you inquired about the following kinds of plausible scenarios?

• General litigation: How do any of the parties use Slack to communicate or share data internally and externally?
• Product liability: How have engineering, research and development teams used Microsoft Teams to create and communicate about relevant product design and testing?
• Anti-trust or intellectual property defense: Did anyone use LinkedIn messenger to communicate, share or take information?
• White collar criminal defense: Could apps like Instagram, WhatsApp or SnapChat have been used to create, transmit or hide communications?
• Financial compliance: Are any of the parties using Symphony or Money.net to collaborate and share trading data?

As we’ve discussed in prior posts, the world of communication and collaboration continues to change and become more fractured. Appreciating the likelihood that readers would have to acknowledge they’ve never asked any of the above questions, don’t know the answers or think it doesn’t matter to their cases, it is important for modern litigators to focus on these issues. There’s one simple factor about the proliferation of these types of technologies that can’t be ignored: The economics strongly demonstrate that businesses are bound to rely on tools like these.

• Microsoft’s $26.2 billion purchase of LinkedIn, Facebook’s $22 billion acquisition of WhatsApp and Snapchat’s $21+ billion market cap are clear indicators that there are huge user communities that these companies profit from through massive adoption.
• The Office 365 community continues to grow. With over 120 million commercial users, companies are not just thinking about email anymore. They’re thinking about how the entire ecosystem of applications in the cloud, like Teams, can be best leveraged to chat, create content, share information and maintain data for ongoing reference.
• Bloomberg’s 320,000+ terminals distributed all around the world in financial institutions of all shapes and sizes for $25,000 per terminal, coupled with highly publicized Bloomberg chats about LIBOR rate fixing, for example, make their service a target to be undercut by companies like Symphony. This potential alternative to Bloomberg poses noteworthy competition by offering chat capability, corporate intelligence, integration with many platforms and other features at a much lower price point. Since Symphony was jump-started by Goldman Sachs and has garnered additional investment from major players, including JPMorgan Chase, Google and BlackRock, it looks like the platform has staying power.

On balance, there’s no reason to fear or try to frustrate this world of new and innovative platforms. Some of the very best lawyers and technologists elegantly measure and contain corporate risk without materially slowing down business and growth. To do so, some key action items include:

• While corporate users adopt these platforms, legal teams should incorporate questions about these systems and similar ones into their discovery checklists, work with experts who are most accustomed to collecting and incorporating these data sources into the discovery workflow and rely on a flexible review platform to manage and produce the resulting data.
• In addition to active disputes and investigations, companies and their counsel also need to think about how to govern and monitor communication mechanisms like these, which might be implicated by regulators who define compliance and surveillance mechanisms very broadly. For example, a recent SEC press release cited a multimillion dollar settlement involving a financial institution that “failed to have compliance and surveillance procedures in place that were reasonably designed to prevent and detect the misconduct.”

Whenever concerns for these types of issues land on your desk, you can turn to KLD's experts and innovative ediscovery technology to guide you through a sustainable solution.