What Applications Does Your Business Use?

I think we can all agree that discoverable sources of electronically stored information (ESI) in litigation now extend well beyond the traditional email and office files. But what else should you collect? To answer that question, consider what applications your business uses – because ESI is being generated from those applications, which makes that ESI potentially discoverable in litigation.

Common Sources of ESI in Business Today

Here some of the common sources of ESI in business today that might be discoverable in litigation cases:

Office and Email Files: This has been a traditional source of ESI in many cases for years. But where the office and email files are coming from is changing – for many organizations today, it’s coming from cloud-based Office solutions, such as M365 and G-Suite. Even the traditional sources are changing.

Enterprise Systems: Office and email are one example of an enterprise system, but there are numerous other examples from which relevant ESI may need to be collected. We could write a blog post just on this category alone (hey, great idea!), and here are a few examples of potentially discoverable enterprise systems:

Document Management Systems (DMS): Organizations have been using DMS solutions like SharePoint and Google Drive for years. Has anything changed? Yes – the tendency to link to files within DMS solutions instead of attaching to them in emails has complicated the traditional email-attachment “family” in eDiscovery, because the “child” is in another solution instead of embedded within the email.

Customer Relationship Management (CRM): CRM and marketing solutions like SalesForce and HubSpot can be discoverable, especially in cases involving former employees and potential misappropriation of customer lists when they leave for a competitor.

Human Resource (HR): HR solutions like ADP Workforce Now and Workday HCM could be discoverable in employment discrimination cases where performance reviews and raises could be central to the issues in the case.

Accounting Software: Financial information for the company could be discoverable from accounting software solutions, such as SAP or QuickBooks. Deciding the form of production may require some discussion and negotiation as some cases merit financial reports generated from the platform, while others may necessitate a “data dump” from the database.

Business Intelligence (BI): BI platforms are also increasingly discoverable as more organizations analyze their data. Platforms like Microsoft Power BI, Tableau and Oracle BI have important organization data that could be discoverable. Again, form of production – to determine whether reports or a data dump is appropriate – may require some discussion and negotiation.

Mobile Devices: Who doesn’t have a mobile device these days, or correspond with work colleagues over text about business items? Mobile devices are regularly discoverable these days for text messages and can be discoverable for a variety of other sources of ESI, including photos, videos, geolocation data and more. Here’s one case that illustrates it’s importance.

Collaboration and Chat Apps: What organization doesn’t use these today? Especially since the pandemic, usage of Slack, Teams and Zoom has skyrocketed and there are many other apps in use by organizations, including ephemeral messaging apps like Snapchat and Signal. These have become a staple of business communications in recent years and are regularly discoverable.

Social Media and Websites: While social media is more often discoverable from individual plaintiffs, there are cases where corporate social media channels could contain discoverable data. Website content (current and archived) can also be discoverable, as we saw in this case.

Audio and Video Files: While often included in other ESI sources (such as mobile devices and collaboration apps), these files merit special mention because of the unique challenges associated with responsiveness determination of these sources and we’re seeing a much larger number of them because of the popularity of mobile devices and the increased proliferation of recorded web meetings on platforms like Zoom and Teams.

Source Code/Proprietary Solutions: Even source code and other objects associated with proprietary solutions can be discoverable these days – especially in intellectual property cases. ESI from source code management tools like Git and Team Foundation Server (that provide version tracking) could certainly be discoverable in these types of cases.

Conclusion

As a reminder, these are common sources of ESI in businesses today, which means that they are likely discoverable as well. There are plenty of others that could be discoverable as well, depending on the type of case and the ESI that could be at issue.

Regardless, when considering what type of ESI to collect for litigation, start by considering what applications your business uses. If your business is using them, there’s a good chance your client’s business is using them too, which makes them potentially discoverable for litigation. Each source of ESI requires a unique approach to discovery to ensure evidence authentication, so it’s important to work with professionals who understand best practices for collecting from each source.