Ediscovery, Remote Work, and the Rise of Collaboration Apps

| June 1 2022

Even before the COVID-19 Pandemic in 2020, collaboration app (e.g. Slack) usage was on the rise for internal enterprise communications, with the market share increasing from around seven billion U.S. dollars in 2015 to nearly 16 billion in 2020, according to one study

Since the pandemic, collaboration app usage has skyrocketed. Another study found that usage of nearly all collaboration tools increased substantially between 17 February and 20 December 2020, with Microsoft Teams growing by 3,891%, video conferencing app Zoom showing 1,788% growth, and messaging app Slack increasing by 1,073%.

Even with a return to more normal day-to-day life, the remote workplace is here to stay. In fact, one report predicts 36.2 million workers or 22% of Americans will be working remotely by the year 2025. This is an 87% increase from pre-pandemic levels. 

Is Slack Data Discoverable?

The 2006 Amendment to Rule 34 of the FRCP makes the answer to this question very clear. It states:

Rule 34(a) is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents. The change clarifies that Rule 34 applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. At the same time, a Rule 34 request for production of “documents” should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and “documents.”

From this definition, there is no question on whether collaboration application data, from Slack or any other app, could be potentially discoverable. More importantly, the data from these apps must also fall under FRCP Rule 26’s Relevance and Proportionality guidelines should it be requested during litigation.

FRCP Rule 26(b) states, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”

The Rules then provide six considerations for determining proportionality:

  • The importance of the issues at stake in the action
  • The amount in controversy
  • The parties’ relative access to relevant information
  • The parties’ resources
  • The importance of the discovery in resolving the issues
  • Whether the burden or expense of the proposed discovery outweighs its likely benefit

Recent Case Law Regarding Slack

The FRCP sets the standards, but it’s how judges interpret them that gives organizations an idea of how the law will have a real-world impact. That’s why it’s important to keep up with case law in order to see how the courts are ruling on ediscovery-related issues.

The following cases, only two years apart, show how much can change in a short period of time.

Milbeck v. Truecar, Inc. (2019)

In this case from 2019, the Plaintiffs requested the Defendant’s Slack data during discovery. And while the defendant was able to preserve the requested data, there was no way at that time to “isolate any specific information, such as particular channels or users and limit the collection to only that data.” Because of the relative newness of the data source, the court ruling states, “conversion and processing of the Slack data – which is necessary before any information can be extracted or any particular channel identified – will likely take at least six weeks and perhaps up to eight weeks. According to Defendants' eDiscovery provider, which has experience with Slack data, manual review will be necessary to identify the start and end of relevant conversations. Even assuming review for production could be completed in another four to six weeks after conversion and processing, the data would be available for production roughly at or close to the time of trial.”

Because of this, the judge ruled that producing the Slack data wasn’t proportional to the needs of the case and denied the Plaintiff’s motion to compel.

Benebone v. Pet Qwerks (2021)

In this case from 2021, Slack data is once again requested. As it states in the ruling, “Because Benebone uses Slack as part of its internal business communications, there is no real dispute that Benebone's Slack messages are likely to contain relevant information. The crucial issue is whether requiring Benebone to search for and produce responsive Slack messages would be unduly burdensome and disproportional to the needs of this case.”

However, by this time, “third-party tools have been developed over the past several years for collecting and reviewing Slack messages and that review and production of Slack messages has become comparable to email document production through use of these tools.”

The expert witness goes on to testify that with these tools, “Searches likely could be limited to certain Slack channels, users, or custodians – which could significantly reduce the volume of Slack messages requiring review.”

As such, the judge ruled as follows: “Based on the evidence presented in the parties' briefing and at the hearing, the Court finds that requiring review and production of Slack messages by Benebone 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.”

How Ediscovery Technology for Slack Can Help

Because collaboration data is the fastest-growing enterprise data source, and it falls within the scope of discoverable ESI in the case of litigation, there’s no denying that corporate legal teams should be prepared to preserve and collect Slack along with other complex data sources (like Google Workspace, Jira, Asana, and other SaaS platforms and internal systems).

Beyond simple preservation and collection, legal teams will also want to maintain the context of the conversation – including attachments, emojis, and metadata – while being able to target collections, apply filters, and use advanced search tools, in order to quickly gain insight into communications without complication, leading to speedy resolutions and reduced risk and cost.

 

To learn more about ediscovery technology for collaboration applications, download Hanzo’s Guide to Litigation and Ediscovery here!

DOWNLOAD THE GUIDE

 

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