[EDRM Editor’s Note: EDRM is happy to amplify our Trusted Partners news and events. The opinions and positions are those of Veritas and Irfan Shuttari. This article was first published on February 15, 2023. ]
In the past several years, the use of collaboration apps has exploded within organizations. Collaboration solutions like Microsoft Teams, Zoom, and Slack and have been growing in popularity over the past several years.
When the pandemic happened, organizations were forced to collaborate more than ever using these solutions. And the usage of them skyrocketed. Here are two examples to illustrate the extent of that growth:
- Microsoft Teams: After being introduced in 2017, usage of Microsoft Teams rose to 75 million daily active users by April 2020. Today, there are nearly four times as many Teams users – 270 million – as there was less than three years ago!
- Zoom: As of December 2019, Zoom had 10 million daily meeting participants. By April 2020, that number rose to 300 million daily meeting participants worldwide! Today, it has more than 350 million daily participants!
Most organizations use multiple collaboration apps today, so a combination of Teams, Slack, Zoom, Google Drive and other apps used to collaborate productively isn’t uncommon. There are always new ways to collaborate in business.
Discovery of Collaboration Data and the Courts
The popularity of collaboration apps has risen to the point that many people expect their usage to eventually overtake email solutions as the preferred way of communicating within businesses. The omnipresence of business communications within those apps today underscores the importance of supporting data from them in discovery – after all, that’s where much of the discoverable data resides today!
…review and production of Slack messages…is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case.
Benebone LLC v. Pet Qwerks, Inc., et al., No. 8:20-cv-00850-AB-AFMx, 2021 WL 524442 (C.D. Cal. Feb. 18, 2021).
Recent court rulings reflect that understanding as courts have found data from collaboration apps to be relevant and proportional in discovery and have sanctioned parties for failing to meet their duty to preserve collaboration data in litigation. Here are six recent court rulings where discovery of collaboration data was addressed:
Benebone v. Pet Qwerks, et al.: Here, Plaintiff took the position that Slack messages should be excluded from discovery, while Defendants wanted them included. After both parties submitted cost estimates and Defendants submitted an estimate from their expert, the Court granted the defendants’ motion to compel production of Slack communications responsive to their document requests, finding that “review and production of Slack messages…is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case”.
Twitter, Inc. v. Musk: In this proportionality dispute between Twitter and Elon Musk over the number of custodians for which Twitter needed to produce Slack messages, the Court ordered Twitter to produce Slack messages from eight total custodians (two more than they proposed), which was less than the 42 custodians sought by Defendants.
Nichols, et al. v. Noom Inc., et al.: After it became apparent in early production that Defendant employees frequently linked to internal documents in Google Drive in lieu of attachments to emails, Plaintiffs sought a ruling from the Court to order Defendants to re-produce emails and linked files as document families. The Court, citing the ESI Protocol between the parties where the handling of hyperlinked documents wasn’t specifically addressed, denied Plaintiffs’ motion to force Defendants to re-produce the documents.
Red Wolf Energy Trading, LLC v. BIA Capital Mgmt., LLC: Here, Defendants – after multiple motions to compel were granted, and after citing difficulties in discovery – eventually produced 47 highly relevant documents from Google Vault and its entire Slack archive to Plaintiff (which included a “smoking gun” Slack exchange). As a result, the Court granted Plaintiff’s Second Motion for Sanctions and awarded a default judgment sanction against Defendants for “repeated” discovery misconduct.
Drips Holdings, LLC v. Teledrip LLC: After litigation was reasonably foreseeable, Defendants changed the retention setting of their Slack archive from unlimited to seven days and deleted their previously exported Slack data. As a result, the Court adopted the Report and Recommendation (“R&R”) of the Magistrate Judge for Defendants to be sanctioned for changing their Slack retention policy but increased the recommended sanction from a permissive adverse-inference instruction to a mandatory adverse-inference instruction sanction.
Ace Am. Ins. Co. v. First Call Envtl., LLC: After a fire that Plaintiffs attributed to Defendant’s alleged improper remediation of environmentally hazardous substances, the Court granted Plaintiff’s motion for adverse inference sanctions due to Defendant’s failure to produce (and presumed spoliation) of Basecamp documents that detailed safety information.
Lessons Learned from Court Rulings
The court rulings above illustrate at least three important lessons for discovery of collaboration data. They are:
- Collaboration App Data is Routinely Discoverable: As we saw in the first three cases, collaboration data is frequently relevant to litigation and courts will expect it to be included in discovery, assuming it’s relevant and proportional.
- Plan Up Front on Handling of Collaboration Data: This includes keeping current on industry trends associated with discovery of collaboration app data and updating ESI Protocol templates to address unique requirements associated with discovery of that data.
- Archival and Preservation of Collaboration Data is Expected: Just as your organization implements a legal hold for email when litigation is anticipated, the same applies to collaboration app data, which illustrates the importance of archiving that data to preserve it for discovery. Failing to adhere to your duty to preserve collaboration data can result in significant sanctions as we saw in some of the cases discussed above.
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