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Getting Ahead of Slack: James Sherer, Aaron Singer, and Ben Barnes Discuss Litigation, Information Governance, and Disruptive Technology

July 10, 2019  |  13 min read

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Slack, the massively popular workplace collaboration tool, went public last month, with an IPO that valued the company at $19.5 billion, three times higher than its estimated worth as a private organization. That event capped years of break-neck growth, which saw Slack rise from its origins as a spin-off of a failed computer game design process to the fastest-growing business software ever.

In just a few years, Slack—part high-tech chat room, part data repository—has fundamentally reshaped the way millions of professionals communicate.

For organizations and legal professionals dealing with Slack, this new technology can present unique challenges, whether around retention and preservation, review, or production during discovery. Legal teams, after all, are used to documents, not chat rooms—and the chat rooms are taking over. [For a guide to Slack and the legal issues it presents, download The Lawyer’s Guide to Discovery and Investigations in Slack.]

As Slack and similar technologies continue to expand into more and more organizations, whether officially adopted or not, legal teams are finding themselves responding to new forms of disruptive technology, faced with determining how to manage their adoption, how to treat the data they create, and how to integrate them into their information governance and litigation processes.

Logikcull recently sat down with three lawyers who have been doing just that: James A. Sherer, a partner at BakerHostetler, where he chairs the firm’s Information governance team; Aaron Singer Executive Vice President of Corporate Operations and General Counsel at Boxed, the e-commerce startup, where he leads the legal, human resources, and quality assurance teams; and Ben Barnes, an at attorney at Redgrave, where he is a member of the firm’s information governance team and assists organizations with the management and protection of data.

The trio recently published “Picking up the SlackTM: Legal and Information Governance Considerations for New(er) Technologies,” in the Richmond Journal of Law and Technology. In the interview that follows, Sherer, Singer, and Barnes discuss why technology like Slack should be on legal teams’ radar and how legal professionals can begin tackling the issues technology like Slack raises. A transcript of our discussion follows, lightly edited for clarity and concision.


Why Lawyers Need to Pay Attention To Slack

Logikcull: Okay, let's dive in. Why should lawyers care about Slack?

James Sherer, BakerHostetler

James A. Sherer: To be clear, I can’t speak on behalf of the firm or our clients. But why should lawyers care about Slack generally? Two reasons: the first is that there’s a good chance, depending on what type of client you’re representing, that your client is using Slack. It's freely available, there are a lot of intuitive parts to the product, and it's something that employees are using for collaborative purposes. That's the first point.

The second is that employees of law firms and corporations, or even legal departments, are also likely to be using collaborative technologies. And if employees work best in a specific, collaborative way that their organization isn’t supporting, employees can sometimes default to these other technologies.

Slack is among those technologies where one needs to be aware of it and to know there's a potential issue, and where one should have the right questions to ask. Those are good reasons to be informed about Slack as well as other kinds of new and innovative technologies.

Logikcull: What sets Slack aside from something like, let's say, the Microsoft Office suite? Why do we hear particularly about Slack as a technology?

Ben Barnes, Redgrave

Ben Barnes: I think the thing that really sets Slack apart is the way that they have positioned themselves in the market. They have a free product. It's extremely easy to set up and there are no boxes to stack. It's really easy for employees to actually start using this technology. Whereas some of the more traditional products, you must go through the IT process, there's a longer time to roll out, of trying to figure out what they need.

I think that’s a big thing, that it's a far easier thing for employees to just do it on their own outside the awareness of an organization.

"There’s a good chance, depending on what type of client you’re representing, that your client is using Slack." 

Sherer: I would say if those employees want to use collaborative software with other individuals who are outside the organization, this is a method that can avoid procurement. An individual doesn't have to get certain permissions or IT support, and she can use it on her personal device. The infrastructure's already provided by the service, so one can say, “Hey, meet me over here. Here’s a method to share these documents. We can start working on these projects. We can get up and running quickly because it's important for us to get to scale, it's important for us to move. Let's ask forgiveness rather than permission and move forward as quickly as we can.”

This type of technology can enable that approach, for better or for worse.


How Slack Data Is Impacting Discovery & Information Governance

Logikcull: When we describe Slack to people who aren't familiar with it, our primary reference point is a chat room, even though Slack is much more than just a chat platform. One of the things that we talk about when we talk about Slack is that our discovery systems, our approaches to litigation, our IT policies, those were all developed around documents and not chat, Now we have this system where chat is taking over. What particular difficulties does something like Slack, as a chat-based system, pose that someone used to dealing with discrete, document-based approaches might struggle with?

Sherer: I think that's just it. It's almost like a translation effect where if you ever thought about chat, it's just that, "Oh well, someone's chatting about the work that's actually being done." How do you switch that frame of reference to say, "No, the chat can be the product here?" A chat might be considered a Wiki that relates to the development of a technology or a process or a piece of software, or whatever the collaborative project is. It could become, in effect, documentation, or it's going to inform documents or other collaborative projects that have been developed.

The challenge is, does it become a record by default or do you have to step in and reframe that? I think what we considered in this article was how to be intelligent about the technology and what it allows. Then, to the extent we can, how can we frame that according to an organization's need to say, "Okay. Well, here's all the things this technology or platform can do, and some of this is on-label use, some of it's off-label use.”

We're looking at it from the perspective of needing to know how people are either using it or could potentially use it, and then arriving at a place where the organization can direct its use. An organization might approach understanding everything this type of technology can do, so that it can determine what employees should be allowed to do—and by extension, so that the organization can provide the right support and employees can work within whatever constraints the organization might add.

"All of a sudden, you're stuck in litigation and you need to figure out a way to try to preserve this Slack data. Many companies simply are not prepared for that."

Logikcull: I want to talk a little quickly Slack data in particular. We have Slack as you experience it in the platform, but when you're dealing with Slack in litigation and discovery, you're dealing with a very different version of that information. When Slack data is exported directly, it comes as JSON files or JavaScript Object Notation, which can be particularly hard to interpret. You can have a single message that takes up pages and pages because there’s so much associated information with it. How does that form of data impact Slack’s use as A) a business record and then B) its use in litigation and?

Barnes: On the discovery aspect, I think there are a number of issues that arise, or maybe hurdles, that need to be dealt with when you're dealing with discovery of this type of information. On the one hand, weeding through and trying to understand the context of these chats, I think that's going to be a significant hurdle when it comes to discovery. Unlike discrete documents, like you're talking about, you have the context—an email, an attachment—of what that communication is talking about. Whereas Slack, you're going to have issues determining what is a family, what other information should be associated with this message. I think those are several issues that may come up with Slack.

"This begins with understanding, on the producing party's side, the extent to which the party can provide both the information that's relevant, as well as an understanding of and an accurate depiction of the actions it took to get there."

Logikcull: How would you define a document in Slack? You have an endless stream of communication that's organized around workspaces and channels and direct messages. How do you set those parameters when you're dealing with the exchange of that information?

Sherer: I think that's the key. Within discovery, practitioners set the parameters of an exchange of information, so there's not necessarily an objective understanding of a singular document. I think the reasonable approach here is to potentially speak with the other counsel, if you're talking about litigation, and say, "All right. Here's what our approach is going to be. We've taken the time to sit down and understand with our client how things are communicated. We've done some of our due diligence in terms of developing the facts. Here's how we're going to present it."

We're going to lay it out in a straightforward fashion and say, "This is how we're bounding this universe of information. We're going to collect and produce it to you in this form, and you take a look at it. Then if you see any other issues, we can discuss those and see if there are ways around it or ways in which we come to an agreement."

This begins with understanding, on the producing party's side, the extent to which the party can provide both the information that's relevant, as well as an understanding of and an accurate depiction of the actions it took to get there.


Disruptive Technology and Proportionality in Discovery

Logikcull: Let’s talk about proportionality. You're dealing with these new sources of data—and this is true enough from what I've heard about Slack, but I think it applies to a lot of new data sources out there. Handling that data can seem difficult largely because of the fact that it is new and there isn't a large ecosystem of tools that have been established to handle it. There's not a lot of knowledge about best practices, about their use in litigation. There isn't a lot of precedent either.

That leads itself to a proportionality argument along the lines of, "We don't have to get to this data. It's going to be disproportionate to the needs of the case." At the same time, the idea that, "Well, we're bad at it, so it's disproportionate," doesn't seem like a very inspiring argument. How do you balance those two things?

Barnes: Let's say that's a difficult question. Every single time there's a new technology, the same argument comes up about how to deal with this new tech. I think it takes, first of all, attorneys being aware of the technologies and understanding how everything works. That's going to be a big step for companies to actually know what they have and what they need to do to actually deal with this issue.

The proportionality in litigation many times can be remedied by being more proactive and actually evaluating the technologies that companies use before litigation occurs. If companies are able to put tools in place to manage this early on, then I think that they’re far better suited to make those proportionality arguments later down the road, so that they're not making that argument that, "We're not good at it, so it's disproportionate."

"Rather than merely avoiding the technology, I think that the better approach is to try to inform people and educate people within the company well enough on what those risks are."

Logikcull: I want to think about this idea of Slack as a medium. It seems that, maybe it's because of the novelty of Slack, maybe because of the chat format, maybe because Slack makes it so easy to throw in an emoji or a gif on everything—it seems that Slack encourages a more informal type of communication. When you are dealing with that information in litigation and you are one of those savvy litigators who knows where to look, that data be a really valuable source of the information that might not normally be included in a typical email or memo.

We've just released a case study with David Slarskey, a litigator in New York City, who talked about Slack as the new Bloomberg Terminal. It's the place you look for the off-the-record conversations. So A, do you agree with that characterization? Then B, if so, what are the implications of that from a legal perspective?

Barnes: I don’t know if I agree or disagree with it. Yes, it certainly does have the potential to be a medium which will have a lot more informal conversations. I really haven't seen that just yet. Perhaps in the future we'll end up seeing that. Of course, when it comes to the implications, the implications are huge, especially for companies that are unaware that they have Slack.

I'm dealing with a few clients where they have discovered they have Slack and they have no plan to deal with it. They have no approach. All of a sudden, you're stuck in litigation and you need to figure out a way to try to preserve this Slack data. Many companies simply are not prepared for that. Coupling that with the idea that you have informal conversations coming down these platforms, it really could be a recipe for some bad stuff.


Educating Stakeholders Around the Risks (and Rewards) of Technology

Logikcull: Would you dissuade someone from saying just, "We're going to avoid this problem by avoiding the technology"? Is that a viable solution?

Aaron Singer, Boxed

Aaron Singer: Quick note, I can’t speak on behalf of Boxed, and my statements are my own. As an in-house lawyer, I think the first step to that question is whether you can even say no. What I mean by that, as a general counsel, I may not actually be the decision maker. The decision makers, because they come from different backgrounds and different departments, may not fully understand why these legal concerns matter so much because the risks of Slack, or other similar technologies, appear so low to them—after all, everyone is using Slack, right? Until something happens.

So, rather than merely avoiding the technology, I think that the better approach is to try to inform people and educate people within the company well enough on what those risks are, and then to train and create rules about how technology can be used and what to do with it. For many general counsels, it can be pretty hard to stop people from using a technology like Slack once it has been adopted, which can happen without the lawyers or the compliance teams even knowing it has happened.

"The decision makers, because they come from different backgrounds and different departments, may not fully understand why these legal concerns matter so much."

Logikcull: Which gets us to the fact that Slack, here, is just an example of a larger approach to technology. That larger issue, which you detail in your Richmond JOLT article, is how organizations can deal with emerging technologies where the data falls somewhere between a business record and disposable information that, absent some external requirement like regulation or a legal hold, does not generally require retention...

Stay tuned for part two of this interview, focusing on building information governance policies and internal consensus around disruptive technologies.