An interesting discussion contrasting the technology, data storage characteristics and the discovery process of e-mails with instant messages (IM) appears in an article by attorneys Michael B. de Leeuw and Eric A. Hirsch in the “E-Discovery” special section of the November 5, 2007 New York Law Journal.
IM is quickly becoming the medium of choice for informal communication in the workplace, offering far greater efficiency, speed and immediacy than e-mail.
The article points out that although IM typically are stored locally in individual hard drives rather than in servers, some users of IM have found themselves in trouble because they did not realize that sometimes a log tracking their messages may be in use. As seen in Scott v, Beth Israel Medical Center Inc., discussed above, employees may want to be particularly wary when using company-sponsored instant messaging program, as opposed to IM programs from America Online, MSN, Yahoo and the like.
The law regarding the discoverability of IM is in its infancy, but in light of IM’s pervasive use, it’s sure to blossom in an interesting way.