Look Before You Leap: Considering the Legal Implications of Collaborative Technology

Andrea L. D'Ambra, Partner, Norton Rose Fulbright and Susana Medeiros, Associate, Norton Rose Fulbright

Andrea L. D'Ambra, Partner, Norton Rose Fulbright

1.Collaborative Technology – A Great Innovation Requiring Thoughtful Implementation

Collaborative technologies present an opportunity to revolutionize the workplace. Over the last decade, companies have increasingly turned to collaborative applications to facilitate employees to work cooperatively within the same interactive workspace in real time from anywhere in the world. Whereas some collaborative technologies such as Yammer and Slack are one-stop shops for workplace communications, including messaging, screen sharing, and video conferencing, other technologies such as Sharepoint, LeanKit and WorkFront are document, project or enterprise management platforms that allow team members and leaders to work on and oversee individual projects and workflows.

Before diving headfirst into implementing collaborative technologies in the workplace, however, a company should give careful consideration to the ease with which information created on collaborative platforms can be preserved and collected should litigation ensue. The weight given to this consideration will necessarily vary from company to company based on each organization’s litigation profile. Companies, who are not regularly hauled into court, may prioritize other features of the collaborative technology over the ability to quickly implement preservation or collect potentially relevant information. But for serial litigants, failing to consider these issues prior to adoption may result in significant costs and hassle that greatly outstrip any benefits the technology offers.

2.Preservation and Collection of Information

Where a company creates something of value, it is always possible that it could be sued by its competitors, customers, or regulators regarding its product or service. In the United States, when companies reasonably anticipate litigation, they have a duty to preserve information potentially relevant to the claims or defenses in the case. This would include relevant information stored within collaborative applications, such as project files and communications. Preservation means not only that the data should not be deleted, but also that it not be altered once the duty to preserve is triggered. The failure to preserve relevant information upon reasonable anticipation of litigation could subject a party to costly legal sanctions and may significantly impact a company’s position in litigation. In some cases, courts have levied millions of dollars in fines and entered rulings that greatly favor the party who requested the destroyed data, in order to even the playing field.

After ensuring that this information is preserved, a company will eventually need to collect this information to identify documents relevant to the case. Collection is typically a custodian-driven process, where Legal identifies key individuals or departments as important to the litigation, and collects documents from these individual and departmental custodians. Collection also must be done in a forensically sound manner—in other words; the data should not be altered by the collection itself.

3.Avoid a Money Pit: Observe Challenges with Preservation and Collection Before Leaping Into New Collaborative Technologies

Companies must look at how the collaborative application can be integrated into current preservation and collection processes, and become familiar with potential technical challenges before rushing into using these technologies in the workplace.

Susana Medeiros, Associate, Norton Rose Fulbright

The alternative is implementing a new technology that is not actually compatible with a company’s legal obligations. This may necessitate expending additional resources on a costly, piecemeal solution that does not adequately service Legal or IT, and negates many of the anticipated business benefits of the product. Avoid a future money pit—understand collaborative technologies and how they affect preservation and collection before rushing into using a new product.

Because collaborative applications differ from traditional office applications, it may be challenging to determine how to approach the preservation and collection process. Collaborative applications feature numerous technical features that may also present certain technical challenges when implementing these processes. First, determine where the data is stored. Companies will often engage third party vendors to host collaborative applications offsite rather than hosting this data on company systems. While shopping for vendors, companies should evaluate whether it will be able to easily request and implement preservation of offsite data. Companies should ensure that they will be able to preserve information stored on collaborative applications as quickly as possible (usually within several days, rather than several weeks), and should be confident their vendor will be able to preserve this information in a format that will not create accessibility issues down the road. Companies should also evaluate any obstacles to collecting information. For example, some vendors may place limitations on how much data may be downloaded per hour or per day, restricting the speed with which a company may collect information for litigation. In addition, companies will need to consider whether the vendor’s hosting platform is compatible with the company’s collection process, to ensure that the data can be accessed and collected in a forensically sound manner. If a company chooses to store its information in-house, the same issues of preservation and collection should be considered. In addition, the corporate IT department should consider whether company firewalls could unduly delay or restrict preservation and collection processes.

Collaborative applications allow multiple individuals to work within the same documents and workspaces, presenting challenges about who owns the information. After identifying an individual as a key player in litigation, the company’s legal counsel should determine whether it will need to collect only the individual’s contributions to a document or project, or whether all information must be collected in order to provide necessary context or to preserve the integrity of the information. Identifying the right custodians who have ownership over key documents within a collaborative application may be more complicated than traditional applications because IT will often provide access to collaborative platforms to a large number of employees, many of whom may never actually use or edit the documents to which they have access.

Any of these challenges, if left unconsidered or unaddressed, could become financially burdensome. If information is unable to be preserved, or preservation is delayed due to technical issues, relevant information may be lost, and a company could be subject to severe court sanctions that will impact a company’s defense in litigation. Unforeseen delays in collecting information and collecting it from the right individuals could prevent legal counsel from finding and producing relevant information, further hampering its ability to defend the company in litigation.

Unforeseen delays in collecting information and collecting it from the right individuals could prevent legal counsel from finding and producing relevant information, further hampering its ability to defend the company in litigation

4.Coordinate Technical and Legal Needs Now To Avoid Future Expense

Collaborative technologies present unique considerations with respect to preserving and collecting documents for litigation. Before adopting a new collaborative application into the workplace, companies should involve legal counsel in the process, so preservation and collection issues can be considered before the product is adopted.

By considering the issues addressed above, companies can implement collaborative technologies that will create tremendous workplace advantages, without jumping into using a product that may incur significant costs and legal risk down the road.