As technology advances, corporations are increasingly discovering that
employee gossip has migrated from the office water cooler to instant
messaging platforms. IM programs can be internal or external. They allow
employees to instantly exchange ideas and observations, or to
collaborate with others. Unlike real-world conversations in corporate
lunchrooms or around employee cubicles, however, instant messages can be
captured, preserved and ultimately displayed in the courtroom. Both
in-house and outside counsel should be aware of the potential legal
risks surrounding IMs, as these instantaneous chat conversations can
implicate regulatory requirements and/or electronic discovery
obligations during litigation.
Instant Messaging in the Workplace
IM use continues to accelerate. A 2013 survey by Informa Telecoms [PDF]
concluded that users sent nearly 20 billion IMs each day, overtaking
traditional SMS text messaging. As a natural consequence, IMs are
penetrating the workplace at an alarming rate. According to TechNewsWorld,
an online technology news publisher, “80 to 90 percent of all companies
have some instant messaging in use by employees,” and 80 percent of
that IM activity takes place over external programs. This trend will
continue as millennials dominate the workforce and demand access to
technology used in everyday life outside of work (such as IM programs),
and software companies introduce robust enterprise IM systems into the
The rising popularity of instant messaging within the workplace is not
surprising because instant messaging offers enterprises a number of
benefits. First, IMs are instant. Unlike email inboxes that are becoming
increasingly clogged with spam or other diminishingly relevant
messages, IM programs allow employees to communicate in real time
without distraction. Instant messaging technology is also flexible—it
connects employees virtually anywhere on any device. Finally, IMs allow
collaboration among multiple individuals, while allowing each user to
easily distribute files to the entire work team without the limitations
of single-message email systems.
Recognizing the Risks
Despite its advantages, instant messaging can expose a corporation to
significant risks that should be addressed by the governance team.
First, enterprise instant messaging creates potential security soft
spots for the organization. External IM programs are hosted by third
parties, and can expose highly sensitive corporate data or provide a
portal for malware or unauthorized users to attack the corporate
network. Even worse, when IM systems are managed by third parties, the
corporation cannot monitor activity, control access, enforce document
retention policies or prevent employees from accidentally or
deliberately disclosing confidential materials to nonemployees.
Second, counsel should recognize that IM systems generate and store
information that must be preserved and produced if litigation or
investigations are imminent. The Federal Rules of Civil Procedure do not
distinguish between information created by IM programs and information
created by traditional methods such as word processors or email.
Indeed, a number of jurisdictions have expressly required parties to produce IMs responsive to discovery requests. Saliga v. Chemtura Corp., Case No. 3:12-cv-832 (RNC) (D. Conn. Nov. 26, 2013) (compelling IMs); UPMC v. City of Pittsburgh,
Civil Action No. 13-563 (W.D. Pa. Oct. 25, 2013) (“Electronically
Stored Information” includes “instant messaging”). More important,
courts may sanction parties that fail to preserve relevant IM
conversations. SeeSoutheastern Mechanical Services, Inc. v. Brody, 657 F. Supp. 2d 1293, 1300 (M.D. Fla. Aug. 31, 2009) (data wiping); Convolve, Inc. v. Compaq Computer Corp.,
223 F.R.D. 162, 177 n.4 (S.D.N.Y. 2004). The volume and disparate
nature of IMs thus present significant challenges to an organization
attempting to preserve and collect documents.
Third, the informal, “water cooler” nature of IM conversations can
often result in highly damaging discovery information. Employees may not
appreciate that their IM conversations are being stored and that their
conversations may reemerge during future litigation or investigations.
Further, the instantaneous nature of IM conversations may prompt an
employee to provide a more candid and less reflective observation.
Mitigating the Risks
The question remains: How can a governance team mitigate the risks inherent in instant messaging within the enterprise?
Governance teams should not “fight” instant messaging if instant
messaging communications are necessary to their businesses. Instead,
organizations should set up their own, internal enterprise-class IM
platforms and encourage employees to switch over. A central platform
allows an organization to monitor employee usage, archive information in
accordance with document retention policies and control access to the
system. A central platform capable of storing all employee conversations
also helps minimize headaches from document collection by eliminating
the need to collect conversations from each employee’s devices (i.e.,
Corporations should also revisit their IT policies. They should
consider limiting the types of documents that employees can share over
instant messaging, defining boundaries on the appropriate use of its IM
systems and determining the type and scope of IM monitoring that must be
conducted by the organization.
Companies need to educate employees on IM use. Although education will
not solve every problem, keeping employees informed about corporate
policies and appropriate use of IM programs will help minimize surprises
if those IM messages later emerge in depositions during litigation.
Employees are more likely to be mindful of what they say during chat
conversations if they know those conversations are being logged and
preserved. Likewise, employees should be counseled on the importance of
not using third-party IM programs at the workplace.
Finally, companies ought to revisit document retention policies.
Federal Rule of Civil Procedure 37(e) provides that “[a]bsent
exceptional circumstances, a court may not impose sanctions under these
rules on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith operation of an
electronic information system.” Given the number of IMs exchanged each
day between employees, the organization’s retention policies should pay
special attention to IMs—in the same way that modern retention policies
have been transformed to address other forms of electronic documents.
Likewise, should litigation become imminent, the organization’s policies
need to be clear on how it will suspend routine document management
protocol. Failure to do so could subject the organization to sanctions.
The Bottom Line
For most enterprises, instant messaging will become more prevalent as
time passes. Although this development may alarm in-house counsel,
proactive management of instant messaging can mitigate risk and enable
the organization to leverage the value of that platform for the
Seth Northrop and Li Zhu are trial attorneys at Robins, Kaplan,
Miller & Ciresi. They are part of the firm’s intellectual property
litigation and global business and technology sourcing practice groups,
and they focus their practices primarily on large-scale disputes
involving a variety of technologies.