Remember the story that the Verge broke a few years ago—aka December 2019—about Steph Korey, the Away CEO who stepped down after former employees claimed that she created a “toxic work culture” through Slack messages?

Away, as it turned out, used the collaboration application Slack for most of its internal communications. The Verge story reported that Away had policies forbidding employees from using email and strongly discouraging the use of private channels or direct messages within Slack. As a result, the whole incident revolved around what Korey said to Away’s customer service teams through Slack messages on the company’s public channels.

But it’s not hard to imagine the facts here unfolding slightly differently. Take a walk with me as we explore a hypothetical possibility.

Suppose that instead of a reporter talking with those disgruntled former employees, it had been an employment lawyer. And, instead of that news breaking in a flashy internet story, suppose that it had happened via an employment litigation claim, perhaps one alleging a hostile workplace. (We’re not saying that hypothetical claim would have had legs; we’re just using this as an example.)

Naturally, discovery would ensue. The parties would issue litigation holds to preserve potentially relevant information about the allegations and then begin collecting, reviewing, and exchanging that information.

What do you think would happen if, in the course of discovery, Away responded that it couldn’t produce any Slack messages because it hadn’t preserved them?

Trouble, that’s what. And if you’re not accounting for Slack data in your ediscovery protocols, you’re headed straight for trouble yourself. Counsel are responsible for ensuring that their clients preserve electronically stored information (ESI) of all types, and there’s no reason for Slack data to be an exception. Here are a few recent real-world cases that illustrate those risks.

TEXT MESSAGES ARE DISCOVERABLE

In John v. County of Lake, No. 18-cv-06935-WHA(SK) (N.D. Cal. July 3, 2020), the magistrate court ordered the defense to pay costs and recommended sanctions—specifically an adverse inference jury instruction—because “[d]efendants or their counsel breached their obligations to provide discovery.” The plaintiffs in this case alleged that the defendants, law enforcement officers, conducted unlawful searches and used excessive force in their efforts to locate a family member wanted for arrest.

The district court had already explicitly directed the defense that “anything that relates directly to the case, like emails, text messages, voicemails, memos, handwritten notes, … should be preserved.” It further advised counsel that “you have a duty, as the lawyers, to tell your clients that. So, please do so.” Still, the defendants failed to turn over text messages.

The magistrate court concluded that despite defendants’ obligation to preserve evidence, “individual [d]efendants … deleted emails and text messages after this litigation began.” Those emails and text messages could not be restored, and their loss prejudiced the plaintiffs. The magistrate court further concluded that the evidence was intentionally destroyed, in spite of the court’s clear warnings, to deprive the plaintiffs of its use in litigation.

SOCIAL MEDIA DATA IS DISCOVERABLE

The rules, of course, run both ways. In Faulkner v. Aero Fulfillment Services, No. 1:19-cv-268 (S.D. Ohio June 8, 2020), the court chastised the plaintiff for destroying social media data, specifically her LinkedIn profile. During discovery for this employment action alleging gender-based pay discrimination, plaintiff’s counsel had already downloaded data from the plaintiff’s LinkedIn account and produced that data—in an Excel spreadsheet—to the defense. At some point after that, defense counsel requested screenshots from LinkedIn. The plaintiff was unable to comply with that request because she had deactivated her account after the data download.

The defense moved for spoliation sanctions, which the court denied. Although the plaintiff “unquestionably violated her duty to preserve (potentially) relevant evidence,” the court did not explicitly find that any prejudice ensued. The court was also quick to point out that the defendant “was not legally entitled to a second production of the LinkedIn account data in a different format” under Rule 34(b)(2)(E)(iii) of the Federal Rules of Civil Procedure.

While the court allowed that it was possible that the plaintiff herself “simply did not understand her duty of preservation,” it was “incumbent upon her counsel to relate” that duty to her. Nonetheless, the court limited itself to admonishing the plaintiff for deleting her social media account.

EPHEMERAL MESSAGES ARE DISCOVERABLE

Fair warning: there’s a lot going on in this next case. In WeRide Corp. v. Huang, No. 5:18-CV-07233-EJD (N.D. Cal. Apr. 24, 2020), the court issued terminating sanctions against the defendants for their “staggering” discovery misconduct. The plaintiff, an autonomous vehicle company, brought various claims, including misappropriation of trade secrets, against two former employees and their new company, competitor AllRide.

The defendants admitted to the wholesale destruction of emails during the pendency of the matter and to the deletion of files from the plaintiff’s company-issued laptops. One defendant also admitted that he returned his personal laptop to an Apple store without preserving any evidence from it. Additionally, the defendants used an ephemeral messaging application, DingTalk, for internal correspondence. They were unable to recover or produce any of those messages, including non-ephemeral messages; defendant Wang claimed that “he cannot find a vendor to extract them.”

The plaintiff requested terminating sanctions for the defendants’ spoliation of evidence. Viewing all of the circumstances, the court concluded that the defendants intentionally spoliated evidence that could not be recovered, prejudicing the plaintiff. It further held that no lesser sanctions would be adequate to cure the prejudice that arose from this “staggering” spoliation and thus ordered case-terminating sanctions.

SLACK DATA IS DISCOVERABLE

Barely 15 years ago, litigants were still arguing about whether email should be discoverable and whether counsel could be held accountable for failure to preserve emails. In Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (“Zubulake V”), the court granted sanctions for an employer’s willful deletion of relevant emails. In doing so, it ascribed part of the blame for that failure to defense counsel, stating that “[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched” (emphasis added).

There is no reason to believe that Slack data would be excluded from “all sources of discoverable information.” When it’s potentially relevant to a claim or a defense, litigants are obligated to preserve, collect, and produce that data to their opponent—and counsel are obligated to make sure they do.

We can learn from history, or we can doom ourselves to reliving it.

[View source.]