The Litigation Risks of App Soup

Today, there seems to be a separate piece of software for even the most minor business functions. Meetings are scheduled through Calendly and held over Zoom, sales calls are made through Aircall with customer notes kept in Salesforce, customer complaints are managed through Zendesk, internal communications are held over email, Slack, Signal, and other messaging platforms, and on and on.

This so-called app soup may be common, but will become a headache if and when you are sued. Here’s why – as a part of litigation, the party suing you has a right to obtain documents relevant to their case, and it’s your obligation to know where to look for them. As little as ten years ago, fulfilling this obligation may have required only a search of emails, Microsoft Office documents, and paper files. Today though, the types of documents you have to provide can exist in a host of places: chat notes from a Zoom call, a conversation in a new messaging app, a record of a meeting from a calendaring app, a summary of meeting notes from an AI bot, and more. Your legal obligations could require searching (or more accurately paying your attorney to search) a number of products and services.

What’s more, once you are sued you aren’t allowed to delete documents relevant to the case until it’s resolved. So that chatbot you tried for a few months and want to cancel? That’s fine, but if relevant to litigation you may need to find a way to export the data in it to an archive before you terminate the agreement. This all could prove expensive and time-consuming, but it’s better than the alternative. Deleting potentially relevant files could easily lead to a court imposing sanctions that give legs to an otherwise frivolous case.

So what do you do?  Three tips:

1.       Be thoughtful about the services you purchase and how you use them.  At a minimum, ensure that your teams are not buying duplicative products and make sure you have a full picture of what’s being used across time. Avoid non-essential one-off purchases.

2.       If you are sued, have an early conversation with your counsel about where information is stored. Experienced counsel can discuss with you how to preserve and search this information in the most cost-conscious way.

3.       Develop a policy where you delete unnecessary business records at set intervals. Doing this will save you from having to save unnecessary files, potentially for years. You’ll have to pause this policy if in litigation, so the time to set this up is before you have a problem. Note that some records have retention period imposed by law, so you should work with an attorney when you do this.

Litigation will happen, but a thoughtful approach to the products you use can save you both time and money.

*This blog is intended to provide a general summary of best practices and does not constitute legal advice. You should consult with counsel to determine the exact legal requirements in a given situation.