Court notes that for discovery, Slack messages are “generally comparable” to email. 

A recent case out of California brings to the forefront what every organization using collaboration applications like Slack needs to take note.  Although this case hinges on a proportionality argument, the clear take-away for me is the Court’s matter-of-fact conclusion that Slack communications are clearly relevant to discovery. 

...because Benebone uses Slack as part of its internal business communications, there is no real dispute that Benebone's Slack messages are likely to contain relevant information. 

Just like back in the early days of email, relying on a “don’t ask, don’t tell” strategy or a “not reasonably accessible” defense will simply not carry the day when responding to a discovery obligation.  That is why Hanzo has been delivering innovative solutions to address the challenges of collaboration applications head-on.

I anticipate we’ll see more findings like this order from the case of Benebone LLC v. Pet Qwerks, Inc., No. 8:20-cv-00850-AB-AFMx (C.D. Cal. Feb. 18, 2021). During the discovery phase of this intellectual property dispute, Pet Qwerks moved to compel the production of Benebone’s Slack messages that were responsive to its ediscovery requests. The court granted the motion after assessing the relevance and proportionality of Benebone’s Slack messages. 

Benebone’s Slack Messages Are Relevant to This Patent Dispute

The court initially noted that under Federal Rule of Civil Procedure 26(b)(1), “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case” is discoverable.

Benebone did not dispute that it regularly “uses Slack, as well as standard email, for its internal communications.” The court observed that Slack users at Benebone “include [its] marketing director, COO, and CEO (who is also a named inventor on the three asserted design patents).” 

Given this, the court determined that “there is no real dispute that Benebone’s Slack messages are likely to contain relevant information” for the patent claims it had asserted. The only question, then, “is whether requiring Benebone to search for and produce responsive Slack messages would be unduly burdensome and disproportional to the needs of this case.” 

With Limited and Focused Searches, Production of Slack Messages Is Proportional

Benebone advised Pet Qwerks that it had about 30,000 messages in its Slack account and estimated that “it would cost $110,000 to $255,000 to extract, process, and review” that corpus. Using those numbers, Benebone maintained that producing its Slack messages would be an undue burden that was not proportional to the case’s needs. It did not, however, offer any witness or additional evidence to support its claimed costs. 

Pet Qwerks filed a declaration from an expert, Michael Gutierrez, who stated that current ediscovery tools could “streamline review and production of Slack messages.” Gutierrez claimed that it would cost only $22,000 to review and produce Benebone’s responsive Slack messages. Gutierrez also testified at the hearing on the motion to compel, where the court found him to be knowledgeable, credible, and unrebutted. 

The court agreed that with current technology, “requiring review and production of Slack messages … is generally comparable to requiring search and production of emails.” Nor would Benebone need to review every one of its 30,000 Slack messages, as it could “significantly reduce the volume” of reviewed messages by limiting its search according to channels, users, and custodians. 

The court did note that it found Gutierrez’s $22,000 estimate—based on using $40-an-hour review attorneys—to be “on the low side.” However, it also believed that Benebone’s $110,000 to $255,000 estimate was “substantially inflated” by the assumptions that it would need to review every one of its messages and that it would cost $400 an hour to do so.

But because “Benebone seeks the full range of monetary damages” for product sales “allegedly in the millions of dollars,” the court concluded that “a focused search for and production of Slack messages is proportional.” 

All told, then, Benebone’s Slack messages were relevant, and their production would not be unduly burdensome or disproportional to the needs of the case so long as Benebone “appropriately limited and focused” its searches. Shortly after this ruling, the parties in this case settled.

Key Takeaways

If your organization uses Slack or another collaboration platform for internal business communications, it’s time to start treating that data like you would email. Take your standard ediscovery workflow and review it to ensure that you include Slack and other collaboration data sources. Make certain that you have means to defensibly preserve, search, cull and produce Slack messages based on critical criteria such as relevant custodians, dates, channels, and keyword search, at the least.

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