Scenario

An organization learns that an employee has filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that she was sexually harassed in the workplace. The organization is aware thatmany of its employees, including key employees named in the EEOC complaint, use publicly available InstantMessaging (IM) software to communicate with one another while at work. The organization does not have an existing policy governing the use of IM and is concerned that key employeesmay be engaging in discoverable communications via IM. The organization is now considering whether, and how, to take steps to retain potentially relevant IMcommunications.

What is Instant Messaging?

Originally popularized by teenagers and college students, IM has spread into the workplace. IM allows direct communications between two or more individuals via the Internet using a smallmessage window to deliver a typedmessage from the sender’s computer to the recipient’s computer. It differs fromemail in that it is instant and is designed to be interactive and conversational. In addition, unless specificmeasures are taken to retain the text exchanged during an IMsession, themessages generally cease to exist once the session is terminated.

Many business people use IM because of its immediacy and efficiency in exchanging real-time information. Initially, business people used public IMservices such as AIM, Yahoo IM or Google Chat— products they downloaded free of charge on their employers’ computers. In recent years, however, some organizations have installed internal IMsystems. Although a consensus has yet to be reached as to whether, for purposes of discovery, instant messages most resemble email, chat room“conversations,” conference tools, or telephone conversations, it is clear that IMhas borrowed features fromboth telephony and email. However, whether IM remains as ephemeral as telephone communications or endures like email depends on whether transcripts of the messages aremade, printed or otherwise recorded by the user prior to ending the IM session or, in the case of corporate IM, whether the conversation is captured on the organization’s server.

What Issues Arise Regarding Instant Messaging in Discovery?

The significance of IMas a source of electronically stored information (ESI) has grown in recent years due, in part, to the increasing use of IMin the corporate world, the increasing ability to capture or log IM sessions and the fact that communications via IM are often evenmore casual than email communications. Under Fed. R. Civ. Proc. 34(a) “electronically stored information” is discoverable if it is “stored in any medium” fromwhich it can be obtained and “translated, if necessary,” into a “reasonably usable form.” To the extent that IM is retained in the ordinary course of business, by either individual users or on an organization’s servers, IMmay, like email, constitute ESI and be subject to preservation and production to the extent it is reasonably calculated to lead to the discovery of admissible evidence.

An even more difficult question arises when an organization does not retain instantmessages in the ordinary course of business and where a continuing obligation to preserve information arises in connection with a pending or anticipated litigation. In those situations, an organization that does not retain IM in the ordinary course of businessmust consider whether it is required to institute some formof retention as a result of the anticipated or pending litigation.

There has, to date, been very little explicit guidance fromthe bench on this subject. Given this lack of direction, whether an organization has a legal obligation to preserve instantmessages is best determined by examining the practical issues involved, such as the specificity of any demand for preservation (whether by demand letter, subpoena or the like), its likely relevance to the issues in dispute, and any regulatory or other business needs involved.

Best Practices for Preserving Instant Messages

Organizations should consider taking affirmative steps to establish policies and procedures regarding the use of IMin the workplace. Further, the absence of clear guidance fromthe courts regarding the production and preservation of instant messages counsels in favor of taking affirmative action to address this issue at the onset of litigation.

  • Evaluate the Need for an IMSystem. Before considering the question of instantmessage retention, organizations should carefully consider whether IMshould bemade available at all.While IMcan provide substantial efficiencies in the conduct of businessmatters, itmay trigger employeemisuse and become a tool for sexual harassment, offensive or other non-professional communications, theft of corporate secrets, or simple abuse of corporate time and resources. Only if the benefits of IM outweigh the risks should an organization adopt the use of an IM systemin the workplace.
  • Install a Corporate IMSystem and Prohibit Public Instant Messages fromBeing Used. If an organization concludes that IMposes a net benefit, the next step is to decide what kind of IM systemit should use.While this is a business decision, the issue of control of the server is likely going to tip the balance in favor of purchasing an enterprise-wide system. An organization that has its own IM platform, and that implements and enforces a policy on the use and retention of instant messages, is in amuch better position to ensure that instantmessages are being treated correctly and consistently.
  • Establish a General Policy Governing the Use, Content and Retention of Instant Messages. Organizations should consider implementing a written, clear and understandable IM policy. In evaluating the need for retention, organizations should consider regulatory or other industry requirements: for example, in recent years, both the Securities and Exchange Commission and the Financial Industry Regulatory Authority have promulgated rules that specifically require the retention of instant messages for three years. Retention, archiving and deletion procedures for instantmessages should be described if a determination ismade that retention is appropriate.
  • Raise the Issue of Instant Messages Early in Discovery. Organizations should carefully evaluate their preservation obligations at the outset of any litigation, including whether a requirement may exist to preserve instantmessages on a going-forward basis. Litigants should consider raising this issue with the opposing party early in the litigation, including whether and how potentially relevant instantmessages should be preserved or produced. As with all issues related to ESI, if an agreement cannot be reached, it is preferable to approach the court with a sensible, reasoned solution early rather than face allegations of spoliation later.