eDiscovery and the associated document review process accounts for about 80% of total litigation spend in the US, per the American Bar Association. This comes to nearly $42 billion a year being spent by regulated entities to review their documents.
The inordinate amount of money spent by government bodies and regulated private industries is only set to grow substantially. This is because the adoption of mobile communication in the workplace has given rise to the exchange of massive volumes of data every second that needs to be captured and retained as part of legal hold and eDiscovery proceedings necessitated by lawsuits, internal investigations, and regulator action.
While organizations have tried their best to keep up with new IT policies for how employees use their smartphones and which apps they communicate with, there are still gaps in the process that have cost companies billions in fines for non-compliance. Case in point, major banks and other financial institutions that failed to keep records of their employee communication via mobile devices were hit with about $2 billion worth of penalties infamously dubbed the WhatsApp fines.
Legal hold requirements and their importance in the eDiscovery process
Essentially, a legal / litigation hold is a process initiated by companies when they are investigated, sued, or have eDiscovery proceedings initiated against them.
In such an instance, the company or agency ends up requiring its employees to retain all the electronically stored information (ESI) pertaining to their mobile communication, such as texts, calls, and even chat information from instant messengers (IMs). The information is to be kept safe without modification or deletion for the duration of the legal hold, meaning employee communication can be kept for durations longer than the intended retention period. The entire process of the legal hold is to be documented and reviewed periodically to ensure all the information relating to the investigation or lawsuit is recorded.
It is worth mentioning that the electronic information, which is the employee text message archive, retained by your organization may need to be disclosed as evidence as part of the eDiscovery process. Usually, the process is brought about when there are allegations that the company violated communication compliance regulations, committed fraud, or engaged in discrimination/ harassment of employees, making the process of secure legal hold a necessity.
Challenges in retaining mobile communication as part of legal hold and performing eDiscovery
One of the biggest hurdles that companies and government entities face is the time constraints associated with manually reviewing employee mobile communication sent during the duration of the legal hold. Employees use myriad channels to converse with each other, and the communication may contain thousands of texts, call logs, files, and even contextually important elements, such as emojis.
Even with the presence of on-premise infrastructure to monitor text messages and undertake WhatsApp call recording, there are associated challenges, such as employee privacy and consent to the legal hold as required by regulations, like GDPR, data security, and the danger of unauthorized access.
Mastering Mobile Compliance: Best Practices for eDiscovery and legal hold
Given the complexity and cost-intensive nature of legal hold and subsequent eDiscovery proceedings, regulated entities and government bodies must have in place clear guidelines on the kind of legal requests that trigger the legal hold process.
Compliance teams must clarify beforehand who is responsible for each aspect of the legal hold and eDiscovery process and ensure there is proper communication regarding the same. Consistent training for the stakeholders who are engaged in preserving the relevant mobile communication can be invaluable in cutting down the time taken to complete the process.
Additionally, employees are required to be subject to clear BYOD (Bring Your Own Device) rules that ensure the communication channels are supervised with consent for meeting legal hold requirements.
Investing in an archiving solution —A gamechanger for navigating eDiscovery and legal hold requirements
Notably, an archiver for the purpose of automated call monitoring, WhatsApp archiving, and recording text messages in a tamper-proof manner can make the process of retaining and retrieving the required information during the eDiscovery process effortless.
Typically, an archiver will equip the compliance teams of state and federal agencies and regulated private entities with capabilities, including:
- Capture of relevant metadata: Notably, the archiver keeps a comprehensive record of information, such as sender and receiver phone numbers, date, time, etc. The increased context from this metadata and other relevant details, like the attached documents ensure that the sheer volume of the mobile communication doesn’t hinder the eDiscovery process and that the required information can be filtered out without manual review based on keyword, file type, date, or sender/ receiver.
- Access controls and data privacy & security: Using a text message archiver, organizations can rest assured their information is safeguarded in a temper-proof manner with a clear audit trail as mandated by regulators. The compliance teams can set up access controls and different levels of permissions for people in the organization to ensure the integrity of the data. For maximum security, archivers, like TeleMessage are SOC 2 certified.
- The ability to export files in multiple readable formats: To comply with various eDiscovery requests, the messages captured as part of legal hold requirements need to be exportable to a format, like PDF for presentation to the court or regulators. So, firms need an archiver that can encrypt and export the archived information to the desired format. Crucially, the firm should also be able to redact information that is not relevant to the investigation to protect trade secrets, employee privacy, etc.
- Ensure organization-wide compliance with the duration of the legal hold: Owing to the massive volumes of data generated by employees’ use of instant messengers, organizations usually schedule automatic deletion of files and archives after the regulator-mandated retention period. But when a hold is in place, an archiver can ensure that a copy of the communication is retained for as long as required.
Conclusion
Legal challenges, run-ins with regulators, and internal investigations brought on by employee misconduct are nearly inevitable no matter how well-run an organization is, especially when it operates in a heavily regulated industry. Undoubtedly, at some point, compliance teams will be in a position to initiate a legal hold, inform their employees that their communication is being retained, and subsequently cooperate with the eDiscovery process. An archiver can go a long way in helping companies stay prepared ahead of legal holds being initiated, with a copy of every conversation being automatically retained in the third-party vendor or choice. Importantly, the information is safeguarded with the right context so filtering out the desired communication is pain-free.
TeleMessage has helped numerous regulated entities comply with eDiscovery requests without the usual time and effort hindrances to navigating lawsuits, regulator action, and investigations. Contact us for a demo or inquiries.
About TeleMessage
TeleMessage captures and retains mobile content, including mobile SMS messages, voice calls WhatsApp, and WeChat conversations from corporate or BYOD mobile phones to ensure compliance with various data protection regulations. The messages are securely and reliably retained within TeleMessage servers or forwarded to your choice of archiving data storage vendor.
Our mobile archiving products securely record content from mobile carriers and mobile devices for various ownership models (BYOD, CYOD, and employer-issued). With our multiple archiving solutions, you can always find the right tools or blend for your requirements:
