Which comes first: the chicken or the egg?

Oh, sorry, wrong question. Which comes first: the business communication platform or the ability to preserve, collect, and produce communications from that platform during ediscovery? Okay, it’s a bit clunky as questions go, but businesses that use evolving technologies to keep their teams connected need to figure out an answer to it. 

That’s why we’re glad to see more courts taking on questions of discoverability involving the collaboration platform Slack. This time, we’re looking at the case of Laub v. Horbaczewski, No. CV 17-6210-JAK (KSx) (C.D. Cal. Nov. 17, 2020), in which U.S. Magistrate Judge Karen L. Stevenson denied the plaintiffs’ motion to compel discovery of Slack messages. The court concluded first that the Slack messages the plaintiffs sought were relevant to the litigated issues. However, the court held that obtaining those messages would be unduly burdensome and disproportionate to the case.

The Dispute and the Importance of Direct Messages in Slack

This case involved a contract dispute over the ownership of Drone Racing League, Inc. (DRL), which was itself one of the defendants. Daniel Kanes, one of the plaintiffs, previously worked for DRL, where he used Slack messages—particularly direct or private messages—to communicate about the business. The plaintiffs argued that these Slack messages were “relevant to show [their] involvement in and contributions to DRL” and that they should therefore be produced in discovery. 

The court had previously ruled that the electronically stored information (ESI) within the defendants’ Slack application was “housed at Slack.com [and] was not within the possession, custody, and control of” the defendants. Therefore, the defendants “were not obligated to produce Slack messages” during discovery, and the court instructed the plaintiffs to seek the messages through third-party subpoenas directed to Slack. 

The plaintiffs returned to court, again requesting that the defendants produce direct messages from Slack sent by or to Kanes. In support of their motion, the plaintiffs argued that DRL had upgraded its Slack plan and should now be able to access those messages. The defendants countered that they had “already agreed to produce messages” from their public Slack channels (which was supported by their use of the “free” version of Slack). The instant dispute, therefore, involved only direct or private messages. While the defendants acknowledged that DRL had upgraded its Slack plan to the “Standard” level, they still denied having “access to the messages at issue.” Further, they argued, the requested messages would be both unduly burdensome to produce and cumulative of the “substantial” evidence regarding the plaintiffs’ involvement in DRL.  

Which comes first: the business communication platform or the ability to preserve, collect, and produce communications from that platform during ediscovery?

Relevant but Not Proportional

The court was readily “persuaded that responsive messages [in the private Slack channels] … may be relevant” to the contract claims at issue. However, it equally quickly concluded that those messages were not proportional to the needs of the case. 

In making that finding, the court cited Federal Rule of Civil Procedure 26(b)(2)(B), noting that a “party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost.” In essence, then, the court concluded that production of the private Slack messages would impose an undue burden because those messages were “inaccessible,” not—as the Rule states—that they were inaccessible because of an undue burden or cost.

Additionally, the court was swayed by the defendants’ argument “that the record is replete with evidence of Plaintiffs’ involvement in and contributions to DRL,” such that the “private Slack messages would likely be cumulative.” Unsurprisingly, the plaintiffs were left grappling with that ever-present conundrum of ediscovery, unable to offer any proof that the evidence they sought—but had not seen—would “contain any novel or noteworthy information” that would warrant its production.

Following the court’s earlier opinion, the plaintiffs had also attempted to obtain Kanes’s direct messages by serving Slack with a subpoena. Slack objected to that subpoena under the Stored Communications Act (SCA). The defendants refused to clear the way by consenting to the production, stating that they had “only agreed to consent to a subpoena that was timely served and reasonable in scope.” The court found no authority to order the defendants to consent and additionally noted that the defendants’ “arguments against reasonableness are well-taken” as the “subpoena was not narrowly tailored.”

Refusing both of the plaintiffs’ arguments, the court denied the plaintiffs’ motion to compel.

Key Takeaways

To me, the critical question is the one I posed at the beginning of this post. No, not the one about the chicken: the one about when an organization needs to be prepared to respond to discovery obligations associated with their use of modern communications platforms.

In this case, the defendants were able to successfully argue against discovery based on proportionality, including the importance of the discovery (of private channels) in resolving the issues and avoiding undue burden or expense. Yet one should readily see courts reaching a different conclusion on proportionality based on the six-factor test of Rule 26 (b) (1). 

In allowing the use of a platform like Slack for their business communications, organizations must step up their understanding of how they will comply with anticipated preservation and discovery obligations — to do otherwise will undoubtedly lead to costly explanations and serious risk of sanctions later on.  Another recent court case (Benebone LLC v Pet Qwerks) is but one example of courts taking a different view on relevance and proportionality.

In allowing the use of a platform like Slack for their business communications, organizations must step up their understanding of how they will comply with anticipated preservation and discovery obligations...

Thoughts?

Are you willing to run the risk? Or are you ready to find an ediscovery solution that can effortlessly manage Slack data from public and private channels?

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