Microsoft Teams Took Lawyers by Storm. E-Discovery Experts Weren’t (and Still Aren’t) Ready

October 30, 2023

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Microsoft Teams has become the most popular collaboration apps among legal professionals. But it's also the one causing the most problems for e-discovery professionals.

For most organizations, there was little time to strategize how they would continue business as usual when the COVID-19 pandemic shut offices down three years ago. But one thing was certain: a trusted collaboration application was essential.

Most in the legal market turned to Microsoft Teams, partially because of the existing foothold Microsoft 365 already had within the sector. In fact, the executive summary of ILTA’s Technology Survey 2023 documented 76% Teams adoption in 2023.

While other providers, such as Slack, Google Hangouts and Cisco, have growing adoption of their own within the industry, few can claim the extent of Teams’ embrace by legal.

But as the dust settles on the remote-work frenzy, the speed with which legal turned to Teams might be coming home to roost.

Legal professionals told Legaltech News that those in the trenches of e-discovery are increasingly struggling with locating Teams data, preserving it and keeping track of data custodians. What’s more, as Teams continues to evolve—with new APIs, added short form message formats, and ever-evolving data types—the e-discovery headaches within the software only seem to be escalating.

But now that there is a significant level comfort with the software, experts noted that it might be the right time to retrace some implementation policies by Teams, and maybe even renege a few of them.

Issues With Teams

David Cohen, a partner at Reed Smith and chair of the records and e-discovery (RED) group, said that “lots of complications” have emerged from the use of Teams of late. But he added that many of them could be mitigated by “deciding on initial Teams settings, including weighing e-discovery risk and business risks [versus] benefits of longer-term [and] shorter-term retention.”

In contrast to the traditional process of putting holds on email inboxes, with burgeoning Teams channels that can be created with the click of a button, a lot more thought needs to be placed into determining what kind of litigation hold is right for data within the platform.

“If a hold was placed on every Teams channel [similar to email] that every identified custodian was subscribed to, some companies would never be able to delete any channels messages and there would be mass over preservation of messages having nothing to do with the litigation,” Cohen said. “A more targeted approach, that starts with identifying potentially relevant Teams channels, is usually required” when it comes to “identifying, preserving, and collecting the Teams chat and channel messages that may be relevant to any particular litigation or investigation matter.”

What’s more, when email was the only way to communicate, conversations pertinent to specific litigation could be tracked by preserving those emails. But increasingly, Cohen has noticed “situations where conversations may start out in one platform, like email, and then proceed on multiple fronts, including texts and Teams channels.”

But common e-discovery tools aren’t quite equipped to analyze conversations that proceed through various communication modes, he said.

Did the ‘Barn Door’ Close Too Late? For Joy Heath Rush, the CEO of ILTA, the reason many older review processes, such as those that are applicable to email, may be jury-rigged onto Teams is the sheer speed with which it was adopted over the pandemic days.

In fact, she believes that the initial draw was basic remote collaboration via instant messaging. Soon after, however, users began discovering new capabilities within the software, outpacing their information governance policies and information technology teams’ understanding of Teams as well.

“They were discovering ‘Oh, I can make phone calls with this,’ ‘I can make video calls with this,’ 'I can collaborate with OneDrive with this,’ and the IT people, the lawyers and the professional staff were learning all together,” she said.

Rush noted that many IT teams assumed the pandemic, and Teams usage, would be over in a month or two. When that didn’t happen, “there were a lot of resources thrown at learning” the governance issues of the software. But it might have been a little too late.

“It was like that old saying, the barn door closed after the horse is gone … not only was the horse gone, but it was in the next state,” Rush said. “And it’s nobody’s fault. It was just the way the world was working.”

Like Cohen noted, by mid-2023, e-discovery professionals began noticing a plethora of Teams threads in every organization, some defunct, while others were being sporadically accessed by various individuals.

What’s more, with two solid years of video conferencing, many organizations had an abundance of Teams meeting recordings.

For e-discovery professionals, this meant ”identifying what meetings might be relevant to a particular litigation or investigation, gathering all of the related materials. Not just the recording itself, but a list of attendees, any documents displayed during the meeting in the version that was displayed, any chats created during the meeting, any polling results,” Cohen said. What’s more, these elements were “typically stored in different places and can be difficult to put back together.”

What Now?

Is there hope for organizations looking to get their Teams bearings—and for e-discovery professionals catching their breath chasing Teams data?

For Cohen and Rush, much of the recourse might come from organizations slowing down and retracing their policies around Teams settings, such as their message retention policies and controls around channels within various departments.

“What’s happening is people have learned that their governance models need to be expanded a little bit for the reality of cloud-based, broader adoption [of Teams],” Rush noted. “That’s what happens when applications come into the wild.”

While she doesn’t recommend anyone yanking Teams out of their workflows, “rolling back certain aspects” of the software could be a good idea, she said. For some, that may mean changing admin controls around chat retention, for others it could mean a reevaluation of their voice-calling solution, and for yet others it could involve altering Q&A and broadcast capacities within their enterprise-wide meetings.

Ultimately, it may be early for finding solutions around how to better manage Teams data. But for now, organizations might benefit from documenting and sharing the e-discovery issues they are having with the software, and brainstorming potential pathways as a community, Rush noted.