As the world embraces a more collaborative way of working and uses new applications like Slack to communicate with one another, there is a corollary impact on other areas of the business such as how does legal manage the data for ediscovery and information governance — avoiding spoliation while mitigating risk with defensible deletion.
WHAT HAPPENS IF YOU DON’T PRESERVE SLACK COMMUNICATIONS?
It’s time to learn a phrase that strikes fear into the hearts of lawyers and ediscovery professionals everywhere: spoliation sanctions.
WHAT IS SPOLIATION AND WHAT HAPPENS WHEN SPOLIATION OCCURS?
Spoliation is the loss or destruction of information that should have been protected for use in litigation or potential litigation.
When electronic information is spoliated because a party failed to take reasonable steps to preserve and protect that information, that party will likely face “curative measures” and in egregious cases punished with spoliation sanctions. Those sanctions can include punishments like these:
- Additional mandated discovery to replace or restore lost information (including depositions),
- monetary penalties,
- instructions to the jury about what the lost information might have or would have proven, and even
- a judgment against the party that lost the information.
That’s right: lose information that you should have kept for discovery, and you might find yourself losing the case you needed the information for. That’s how seriously the courts take discovery and the parties’ obligations to retain information.
Now, to be clear, we’re not saying that anytime a litigant loses information they’re going to be hit with all of these sanctions. What we are saying is that organizations need to be prepared to deal with discovery, including preservation obligations, because the penalties for ignoring it or sticking their heads in the sand are too severe to risk.
WHAT ARE THE RISKS OF SLACK SPOLIATION?
State and Federal rules of civil procedure guide how discovery is to be conducted in US courts. The Federal Rule of Civil Procedure 37(e), for example, requires organizations to take reasonable steps to protect electronically stored information (ESI) that may be relevant to a litigation matter. Other rules define relevance, and still others outline the process for negotiating a reasonable scope of discovery. Taking steps to ensure data is being preserved is crucial, whether to avoid inadvertent deletion, or the intentional destruction that could be construed as acts meant to deprive another party of the information (and risk severe penalties).
In the case of Slack conversations and collaboration data, organizations need to establish their strategies for determining when Slack is likely to be within scope for discovery, what data is potentially relevant, and how the data will be reasonably preserved. Slack is different in many ways from traditional sources of electronically stored information. For example, conversations are often done in shared channels where users post messages to one another, or simply observe a discussion and only rarely contribute. Information may be created by integrated “apps” and “bots” that automatically generate content. Slack channels may be critical to business operations, or social channels for sharing information about the latest hobby. Data may be uploaded and stored in Slack, or referenced via links to data stored in other repositories. And all of this content is dynamic by nature -- users can go back in time to edit or delete messages, start new threads, or modify linked documents.
Thus, challenges quickly arise when attempting to identify what types of data and conversations are relevant to a preservation obligation, how a custodian is defined, and how data that is constantly changing can be defensibly preserved. Doing so proactively is critical to avoid potentially costly curative measures and/or sanctions as described above.