Attys Navigate Discovery Hurdles With Chats, Personal Data

In this article for Law360, partner Sunil Shenoi spoke on a panel for the "2023 Master's Conference" discussing the challenges of modern e-discovery and the concerns on data privacy issues.  

In-house counsel, law firms and government attorneys are facing unique challenges in e-discovery in collecting chats from multiple tools and separating business communications from personal data, panelists said Tuesday at a legal technology leadership conference in Chicago.

Alicia Hawley, senior discovery attorney at Orrick Herrington & Sutcliffe LLP, said during one panel discussion that attorneys handling discovery for a company need to talk directly to employees to figure out what tools they are using to communicate with each other that their employer might not know about and collect chat messages from those platforms.

Once attorneys have employee chats, interpreting those communications can be difficult, Hawley added.

"No two people communicate the same way with the same emojis and shorthand," she said.

The one-day Master's Conference, hosted by Seyfath Shaw LLP at its Chicago office featured several panels about the challenges of modern e-discovery, including the global nature of investigations and data privacy considerations.

Sunil Shenoi, a partner in Kirkland & Ellis LLP's government and internal investigations group, said a challenge he had encountered was employees refusing to turn over business devices with personal data on them.

"We're seeing more of a resistance to unfettered access," Shenoi said.

Whitney Becker, lead senior counsel for global litigation at real estate services company CBRE Inc., added that employees outside the U.S. can have greater privacy protections that give them a right to deny access to their devices.

Becker recommended that attorneys talk with employees to find out why they don't want to turn over their devices, noting that workers could be concerned about managers finding out that they talked had badmouthed them.

"Getting to the underlying reason why there is hesitancy, and taking three minutes to address that, will save you a lot of headaches on the workarounds, because once you get to that, a lot of times you can problem-solve to address what the personal concerns are," she said.