How do employees at your company communicate? By phone, text message, email, carrier pigeon, or perhaps a channel-based app like Slack or Discord? Professional communication has splintered into countless different programs and applications, and the eDiscovery process is catching up at the courts’ direction.
Who uses channel-based software?
As an example, Slack — arguably the most popular channel-based platform — has 12 million daily users. Microsoft Teams has a stunning 145 million daily users. These are designed to replace email so that employees can communicate efficiently and effectively. Companies like Slack and Discord are trying to serve their customers faster and better than their competitors, of which there are many, by offering a place for work to happen no matter where the employee is physically located. Google Docs, Microsoft Teams, Trello, and other collaboration tools not only provide options for employees, but also more rabbit holes of information that must be documented during the eDiscovery process.
Is there a solution?
This means that each product must be viewed independently in order to ensure proper collection, said Marco S. Nasca of LINEAL. There is no “one size fits all” approach to collection on channel-based platforms. Some of them – like Google Meet or Asana – have built-in data export capabilities, but these were envisioned for the user’s benefit and not that of a corporate litigation department. Meanwhile, Slack integrates more than two thousand apps, leading to more collections and more potential custodians. Slack at least has a dedicated Discovery API (for those on the Enterprise Grid plan) that allows users to connect their Slack accounts to the eDiscovery vendor of their choice. This streamlines the collection process considerably, allowing users to “export messages and files (PDFs, JPGs, etc.) from any workspace” from the beginning of that workspace’s creation to present. The issue of custodians, however, can become “a fuzzy term,” as there might be one or several depending on the type of conversation (for example, was it a direct or group message?).
According to Law.com, finding out how your employees talk is one of the best ways to mitigate corporate risk, especially now that judges are more inclined to rule in favor of those requesting this type of information. Cases as recent as 2021 note that acquiring Slack information is often “proportional” to the needs of the case and not an undue burden on the parties. According to the magistrate judge in Benebone LLC v. Pet Qwerks, Inc., “Requiring review and production of Slack messages… is generally comparable to requiring search and production of emails.” The judge noted that the requests for information had to be “appropriately limited and focused.”
That ruling opened the door, and the magistrate judge in Benebone has put the damper on counsel using the “undue burden” argument in the future. As long as the discovery requests are directly proportional to the case, it is unlikely that there is an undue burden on either party and the Slack-type information will need to be produced. Using products like Reveal will allow for clean data collections that preserve the information for litigation. Talk to someone on our team about how Reveal can help your case today.
