In a small but important development that could bear on the ability of attorneys to make a reasonable inquiry and diligent search, a handful of judicially-sanctioned ESI stipulations explicitly governing the treatment of Slack and other modern messaging apps in have begun to emerge in federal courts in recent months.
Given the dearth of applicable case law and woefully out-of-date professional guidelines, the arrival of these orders could play an important role in the creation of more formal guidance that will ultimately shape the course of discovery in the years to come.
ESI Orders Are Addressing Emerging Discovery Sources
A sampling of the discovery orders, all of which were entered within the calendar year, reveal a few different flavors:
- Those which require the parties to search and produce data from third-party sources in an agreed-upon format designating specific metadata.
- Those which require disclosure of the sources for further assessment.
- Those which acknowledge the existence of such data, but, alarmingly, make it off-limits in discovery.
While the filings in and of themselves are unlikely to contribute to meaningful jurisprudence apart from signaling, in certain cases, that Slack and its ilk are fair game in discovery, they are perhaps a precursor to looming evidentiary disputes that may decide, in formal case law, the ground rules of how and with what level of granularity such data must be preserved, searched and produced.
Despite suggestions that all the most significant problems in discovery have long been solved, it is indisputable that, as businesses supplement and, in some cases, outright supplant traditional messaging platforms like email with Slack and Microsoft Teams, organizations and their legal personnel will soon be faced with a daunting new set of challenges relating to the discovery of data that is by nature complex, elusive and ephemeral.
New Data Sources, New Grounds for Disputation—And Sanctions
For attorneys, the ability to familiarize themselves with these new data sources and to speak articulately to their potential evidentiary value will weigh heavily on ethical and professional obligations—especially as they relate to attestations under Rule 26(g) of the Federal Rules of Civil Procedure.
While there is seemingly a corresponding sanction or other adverse ruling for every emergent source of business data—see, e.g., Salesforce, Skype, Wickr, Box.com, etc.—Slack, in particular, is distinct in the risks it poses due to the extent to which it is embedded in the operations and communication habits of its customers. A massively popular enterprise messaging app, it is at once a document repository, audit log, bulletin board, deal room, and watercooler.
And, if the eye-popping statistics are to be believed, it is becoming the default method of communication in organizations of all sizes. Roughly three quarters of Fortune 100 companies use Slack, but it’s just as likely that your local coffee shop and teenage daughter are users. And as the traditional workplace increasingly decouples from the physical office, its expanse and influence will only grow.
Getting Control of Slack Evidence—Or At Least Trying To
It goes without saying that Slack and apps like it pose a number of thorny evidentiary challenges. For one, Slack’s ubiquity and social media-like functionality promotes, captures and memorializes the type of impulsive chatter that most employees would be too guarded to put in email.
Then there’s the sheer volume of content it captures: an avalanche of constant conversation that would’ve been unfathomable to anybody who thought the idea of “broad and liberal” discovery was a good idea. Imagine a thousand-deep email thread with dozens of participants quipping short, unpunctuated “sentences” with the entire company cc’d and then sprinkle in some highly confidential business docs and a few funny, but potentially EEOC-baiting one-liners and you begin to get a sense of how Slack works and its attendant pitfalls.
Assuming you can figure out how to put Slack custodians on hold and lock down messages (on the lower paid and free tiers, this may entail exporting the entire database daily), getting data out of Slack in a reasonably meaningful form poses challenges of its own. Attachments, links and certain metadata within channels can only be exported within limited circumstances, or if you (or your client) subscribes to top-tier “Plus” and “Grid” accounts—and then, only if an API connector has been established.
In the context of discovery, there’s also the question, given Slack’s structure (or lack thereof), of what constitutes an actual “document,” when channels often become chat free-for-alls with many participants and onlookers. Add in the fact that Slack integrates with just about every significant business app—replicating and distributing sensitive information relating to all facets of an organization, including sales, strategy, HR, IP and customer documentation—and it’s no wonder that some courts are allowing parties to rope it off entirely.
But as email increasingly goes out of fashion as the correspondence of record, legal professionals will eventually have to confront this emoji-laden Pandora’s box head-on. And, if these court orders are any indicator, sooner rather than later.
