Modern & Emerging Data Sources (Part 3): Instant Messaging and Note-Taking Applications

Previously, we discussed the future of discovery in light of emerging data sources and the challenges and opportunities that come with increasingly diverse compilations of data. As we further investigate modern communication sources, the underlying database structures and the associated challenges or opportunities, let's dive into Microsoft’s Lync instant messaging client and Apple’s Notes app. Both are increasingly common, easy-to-use communication tools in the modern workplace.

The face of an instant message (IM) via Lync includes some straightforward data, like participants, date, time and message body. Meanwhile, there is the underlying metadata. Plus, users can transfer files, conduct virtual meetings, call one another or video chat. Conversation history could be saved in Outlook, locally or on a server. In fact, the databases behind Lync include more than 25 tables related to data transfer, logging, contacts, archiving, monitoring and calling. Consider how frequently business activity occurs or how the environment in a workplace is represented via IM. These communications could easily be relevant to a compliance investigation, run-of-the-mill contract case or employment matters, for example. Compiling IMs can help establish fact patterns, identify outliers or lead to key questions.

From another perspective, consider who may have custody and control of this data. Content might be tied to an Outlook user's account, but IT administrators will have a critical role in management and potential retrieval. Hypothetically speaking, consider the flurry of activity that happens in the wake of a major data breach and the communications that could be happening via IM. Fast forward to litigation, discovery and depositions that arise from the same data breach. How relevant, helpful or potentially harmful could the IM activity be? Can you reconcile that to what’s been preserved and collected? In this type of scenario, the systems administrators are also relevant custodians in  discovery. Therefore, attorneys should consider the level of care necessary to ensure defensible data collection and preservation. Additionally, a nimble review platform will be critical to parse through and classify this data.

Notes applications like Evernote, OneNote from Microsoft or even the Notes app on Apple mobile devices are also handy tools. Users across industries enjoy the flexibility and interoperability these tools offer. In one application and even on one palette, users can store text, photos, embedded files, audio clips, handwritten notes, drawings, tables and check boxes. These platforms provide a virtual notebook that seems to nicely reconcile dynamic and traditional ways of brainstorming, creating and collaborating with a digitally enabled world. Of course, they also present some interesting evidentiary and investigative challenges to address, including:

• The data might be synchronized across multiple locations. For example, a mobile device might be the only location, but it's increasingly likely that the same data is stored in a cloud account, such as iCloud, Office 365 or another site. Even on-premise instances of Microsoft Exchange sync notes from mobile devices.
• Search ability could be limited. Handwriting may be converted to searchable text in some applications, but could also be a non-searchable object in others. This may particularly present a risk in compliance monitoring and enable surreptitious communications that are more difficult to detect.
• Who is best equipped to explain the material in note-taking applications when the files are shared in a group? Increasing collaboration on the same data source diminishes ownership and could present challenges when attorneys go through the fact finding process in their cases.

The bottom line is that it’s important to realize the face value of many communications are far from the whole picture. There's often more that could be available, potentially relevant, helpful or detrimental, given the dynamic nature of modern data sources.

Next, we'll look at other relevant data sources, such as Slack, Symphony, Microsoft Teams, messaging applications on mobile devices and more that will have a noteworthy impact on discovery in litigation and investigations.