The Risks of Losing Data: Why Data Preservation for Text and Chat Data is Crucial
The way we communicate in the workplace has undergone a dramatic transformation in recent years, with messaging applications and text messages becoming increasingly prevalent. While this shift has brought about numerous benefits, it has also presented a significant challenge when it comes to eDiscovery and the need to preserve potentially relevant text and chat data for legal proceedings. Failure to preserve potentially relevant communication data from mobile devices can result in sanctions, loss of evidence, and ultimately, losing the case.
The need for a seamless workflow for the preservation of text and chat data was recently exemplified in a high-profile case, Hunter’s Capital, LLC v. City of Seattle, involving city-issued devices and high-ranking officials. In this case, legal holds were not issued in a timely manner, text messages were deleted by officials, and some text messages were only retained through triangulation (finding text messages on the phones of “other” custodians that communicated with the defendants). Direct text messages between the custodians only were not found. As a result, the defendants were sanctioned $600K, and relevant evidence was lost.
Overcoming Challenges through Implementing Workflows for Mobile and Chat Data Preservation
One of the main challenges of preserving text and chat data is that it can be subject to loss for reasons outside of deletion or that immediately lead to deletion such as losing a phone, forgetting a passcode, or having backups set up to auto-delete.
The solution to overcoming these challenges? Implementing a fluid preservation workflow for text and chat data. This workflow would allow for the recurring collection of data to ensure potential evidence is always up to date; and for consent-based collection of custodian phones anywhere, they may be located with minimal disruption to the business.
Creating a Culture of Mobile Data Preservation within Organizations
Be that as it may, when implementing a workflow for text and chat data, we need to ask several questions: whom to place under legal hold, how often to preserve text and chat data and what type of collection is necessary. Organization-wide education on the importance of preserving potentially relevant mobile and chat data is crucial, as it is necessary to have clear policies and procedures in place to avoid the risk of non-compliance due to ambiguity.
By fostering education, organizations can ensure they are adequately prepared for any legal proceedings that may arise in the future by creating a culture of mobile data preservation within organizations. This involves not only ensuring that employees are aware of the importance of preserving mobile data but also providing them with the tools and resources they need to do so.
Text and chat data preservation can be particularly challenging in today’s era of remote work. With employees working from home or other remote locations, it can be difficult to ensure that mobile data is being preserved. In such cases, it may be necessary to collect custodian phones remotely or to implement secure remote access tools that allow for the collection of relevant data.
In conclusion, the importance of seamless preservation for chat and text data cannot be overstated in today’s digital age. With communication modalities in the workplace shifting to messaging applications and text messages, text and chat data has become critical in eDiscovery. The risk of losing data for reasons outside of deletion or that immediately lead to deletion is high, and defendants and plaintiffs in a case can face severe consequences for data spoliation or a lack of evidence.
By taking a proactive approach to preservation for text and chat data, organizations can protect themselves from costly sanctions and reputational damage. With the ubiquity of text and chat data in the workplace, the need for a continuous preservation workflow for mobile data is clear, and it is essential for organizations to recognize its importance and take the necessary steps to ensure its implementation.
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