June 13, 2021

Volume XI, Number 164

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Potato, Potahto… Email, Slack

First came email.  Then came Slack, WhatsApp, Zoom, Teams, texts, and a host of social media platforms where we can communicate…in writing…and those communications are saved as electronically stored information (ESI).  “Collaboration software,” like Slack, Zoom, and Teams, is the newest eDiscovery challenge.  But the challenge lies in the preservation, capture, and review, as well as the analysis of proportionality, and not in the question of whether it is discoverable.

The United States District Court for the Central District of California recently ruled that Plaintiff’s Slack messages were both relevant and proportional to the needs of the case and ordered their production.  Benebone LLC v. Pet Qwerks, Inc., 2021 WL 831025 (2/18/21).  The main points of contention between Plaintiff and Defendant focused on the cost to extract, process, and review 30,000 Slack messages.

Although the Court described Slack as a relatively new communication tool, it was part of Plaintiff’s internal business communications and there was no real dispute that Plaintiff’s Slack messages were likely to contain relevant information.

On the topic of burden and proportionality to the needs of the case, the court held a (Zoom) hearing and determined 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 disproportionate to the needs of this case.” Id. at *3.

One of the key takeaways from this case is to get an eDiscovery expert. Defendant’s expert testified that there are readily available third-party tools for collection and review of Slack and that searches of the data could be limited to certain Slack channels, users, or custodians (similar to focusing an email search on custodians and time frames).  Defendant’s estimate of cost for the project was vastly different than Plaintiff’s unsupported estimates ($22,000 compared to $110,000-$255,000).  To that end, Defendant’s expert proposed that contract attorneys could do first-level review at a rate of $40 an hour as opposed to a $400 an hour attorney rate.  Plaintiff failed to provide a declaration or testimony from an eDiscovery expert.

When facing federal litigation, your case will involve electronically stored information. Slack is considered a more dynamic form of ESI, making search, collection, and processing more difficult.  Choosing the right application programming interface (API) is important as Slack data is exported in JSON format, which is difficult to decipher and requires the right processing to get to more user-friendly data for review purposes.  Additionally, the level of subscription used impacts what can be recovered.

©2021 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XI, Number 125
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About this Author

Gretchen E. Moore Litigation Attorney Strassburger McKenna
Shareholder

Gretchen E. Moore is a shareholder and Vice President at Strassburger McKenna Gutnick & Gefsky. She has been with the firm since 2004 and also serves as co-chair of the firm’s Litigation Practice Group. Ms. Moore’s practice focuses on commercial and civil litigation and municipal law with an emphasis on contracts, construction, fraud and breach of fiduciary duty.

Ms. Moore practices in state and federal courts, before administrative boards and in arbitration and mediation proceedings. She represents municipalities in land use, zoning,...

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