Navigating the E-Discovery Minefield of Social Collaboration Tools

While technological advancements occur quickly, the treatment of new technologies in e-discovery jurisprudence can more accurately be described as playing a game of “catch-up.” As we approach the two-year mark of the COVID-19 pandemic, we have started to see an increase in decisions addressing the preservation, destruction, and production of collaboration chat data, such as Microsoft Teams and Slack. These decisions highlight some of the emerging challenges related to the preservation, collection, review, and production of social collaboration data in litigation and make clear that, while the technologies may continue to change, the bedrock principles underlying e-discovery have not. Specifically, parties must continue to take swift action to preserve potentially discoverable electronically stored information (ESI); early and active cooperation between parties as part of the Rule 26(f) process continues to be crucial; and intentional and willful spoliation is still a recipe for disaster.

Social Collaboration Tools

Several recent federal decisions dealing with social collaboration platforms exemplify the significance of early identification of the potential importance of such data. For instance, in Benebone v. Pet Qwerks, No. 820CV00850ABAFMX, 2021 WL 831025 (C.D. Cal. Feb. 18, 2021), the parties identified a dispute early in the case surrounding the defendants’ insistence that the plaintiff produce nearly 30,000 Slack messages. The plaintiff argued that it would be unduly burdened if required to produce messages at a cost of $110,000 to $255,000, but the plaintiff did not offer any witness or additional evidence to support its argument for undue burden that the data was not proportional to the needs of the case. The court noted that the plaintiff used Slack “as part of its internal business communications” and, therefore, the issue was not whether the Slack messages were likely to contain relevant information, but rather whether requiring the plaintiff to search for and produce responsive Slack messages would be “unduly burdensome and disproportional to the needs of this case.” The court granted the motion to compel, finding that “requiring review and production of Slack messages by [the plaintiff] is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case—if the requests and searches are appropriately limited and focused.”

In Milbeck v. TrueCar, No. CV1802612SVWAGRX, (C.D. Cal. May 2, 2019), the court addressed the plaintiff’s motion to compel the production of Slack data in a litigation involving a highly compressed discovery period. The plaintiffs only requested the Slack data for the first time one month into discovery, with a trial scheduled less than five months later. Based on the representations from the defendants’ e-discovery vendor, the court concluded that the Slack data would “not realistically be available for use in discovery” because it would be available only “roughly at or close to the time of trial.” While acknowledging that the Slack data likely included messages about an event that was “at the heart of [the] case,” the court denied the motion to compel, concluding that “[t]he discovery period commenced in February 2019. The parties promptly and diligently began discovery negotiations, and have completed a tremendous amount of discovery in a short period.” Essentially, it was too late for the plaintiff to request the Slack data. While the compressed discovery period in this case is not typical, the decision demonstrates the importance of early and active discussions (both with your client and with an adversary) to solidify an understanding as early as possible regarding the potential universe of relevant ESI.

In Charter Communications Operating v. Optymyze, No. CV 2018-0865-JTL, 2021 WL 1811627 (Del. Ch. Jan. 4, 2021), the defendants refused to produce “native files of Microsoft Teams messages” after they produced the Teams messages “as 87,000 individual emails rather than as complete conversations.” After realizing that 87,000 standalone messages were basically useless, the plaintiff filed a motion to compel the defendants to produce the messages in native format to allow for the messages to be reviewed in the context of larger discussions. Not surprisingly, the court granted the motion to compel. The negotiation and entry of a comprehensive ESI protocol, outlining the ESI sought as well as the format of production, is one of the easiest ways to potentially minimize discovery disputes in a litigation, especially as it relates to newer forms of social collaboration data.

Several recent federal decisions involving social collaboration platforms and, specifically, ephemeral messaging have addressed the imposition of severe sanctions for the intentional spoliation of ESI pursuant to Federal Rule of Civil Procedure 37(e)(2). In Federal Trade Commission v. Noland, No. CV-20-00047-PHX-DWL, 2021 WL 3857413 (D. Ariz. Aug. 30, 2021), the plaintiff, the Federal Trade Commission, moved for the imposition of spoliation sanctions and, specifically, for an adverse-inference jury instruction after learning that the defendant instructed a business leadership team to stop using the messaging platforms they previously used and to instead use two encrypted communication platforms that emphasized “user privacy” with an auto-delete function. The day before the defendants were to turn over their cell phones for forensic imaging, the defendants deleted the new applications from their phones “in coordinated fashion.” Assessing an adverse inference pursuant to Rule 37(e)(2), the court found that the defendants acted with the intent to deprive and rejected the defendants’ arguments that they switched communication platforms to avoid being hacked by a former employee.

Similarly, a decision from the Northern District of Indiana illustrates the importance of counsel thoroughly investigating and understanding all data sources their clients may be using to create and store potentially relevant ESI. With the increased use of messaging applications—including ephemeral ones—counsel must understand the intricacies of each application (and its retention and preservation policies) used by their clients to prevent the destruction of relevant ESI. In Doe v. Purdue University, No. 2:17-CV-33-JPK, 2021 WL 2767405 (N.D. Ind. July 2, 2021), the court found that the plaintiff acted in “bad faith” by making false representations to the court and intentionally or recklessly disregarded their discovery obligations by deleting eleven relevant messages from Snapchat. Despite this finding, the court determined that there was not enough evidence to find that the plaintiff deleted ESI with the “intent to deprive” that is required under Rule 37(e)(2). While the court ultimately imposed monetary sanctions after finding that the defendant deleted eleven Snapchat files, including videos and images from his Snapchat account, this opinion illustrates the high bar a requesting party must clear in order for the court to impose severe sanctions against a spoliating party pursuant to Rule 37(e)(2).

Practice Tips

These recent decisions highlight emerging challenges related to the preservation, collection, review, and production of social collaboration data, while reinforcing fundamental e-discovery principles. The increased use of social collaboration data does not change the well-established principles requiring counsel and litigants to take steps at the outset of a litigation (at the latest) to prevent the destruction of ESI. However, the ephemeral nature of many social media and messaging applications—and the increased potential for this data to be modified and deleted—shine a spotlight on the need for timely and proper preservation techniques.

As seen in decisions like Milbeck and Benebone, it is crucial that counsel and parties understand the universe of their own potentially relevant ESI, as well as the likely sources held by an adversary. These decisions highlight the need for parties to engage in cooperative discussions as soon as possible regarding the type of data being sought, such as Slack or Teams messages, and to enter into a comprehensive ESI protocol.

While litigants and counsel should always seek to cooperate in an effort to facilitate the production of existing ESI, parties should also consider the importance of cooperation with respect to the potential deletion of ESI. As demonstrated in Noland, if a company has a legitimate business objective to switch to new communication platforms during the course of a litigation—always a risky proposition, but even more so when ephemeral applications are involved—the company must document and be able to support its good faith, business-related basis for the transition. In fact, to the extent a company contemplates such a transition after the duty to preserve ESI has been triggered in an active or threatened litigation, it would be well-served to advise its adversary of this intention before it acts, to allow both sides to engage in a collaborative discussion regarding preservation of relevant ESI and avoid the implication of evidence tampering or destruction.

Social collaboration tools, such as Slack, Teams, and other ephemeral messaging platforms, are here to stay, as the use of these tools is only increasing as e-discovery vendors continue to develop software to assist in the review and production of these communications. As the court in Benebone noted, Slack messages are quickly becoming comparable to emails, and counsel should be on notice for the potential use of, and requests for, this data.

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Reprinted with permission from the February 3, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.