When you start an ediscovery project, are you explicitly asking your opponents to produce data from the collaboration application Slack? Are you looking for relevant and helpful data within your own Slack channels and proactively preserving that data both to use in your case and to produce in discovery?
Many organizations haven’t yet incorporated Slack data into their ediscovery workflows. In a number of cases, parties are even specifically agreeing that neither side needs to preserve or produce Slack data. Then again, email used to be categorically excluded from ediscovery, and we all know how that story ended. Now that Slack is replacing email across many enterprises, it’s a safe bet that Slack data will eventually make up a sizable portion of ediscovery—and for good reason.
Slack can be a rich data source, one that offers a window into the inner workings of an organization and how its teams truly operate. Slack data could be the key to proving your own claims, showing that you formulated an idea or a product well before a competitor claimed to have invented it. It could help you defend against an opponent’s claims, demonstrating that you took prompt steps to shut down an employee’s discriminatory statements. The utility of Slack data is vast, and not asking for it directly—or taking steps to preserve it within your organization—can mean missing out on valuable, even pivotal, evidence.
Here’s what you need to start doing with Slack data—before it’s too late.
REQUESTING SLACK DATA IN EDISCOVERY
Ediscovery has evolved, albeit sometimes slowly, to incorporate each new form of communication that organizations have used to conduct their internal and external business. Legal teams are used to dealing with emails, documents and spreadsheets from Microsoft Office, text messages, and, increasingly, social media. After all, those forms of communication often include information that is relevant and discoverable.
Is Slack really any different? Slack's more than 85,000 paid daily users are logging serious time on the app, keeping it open for more than 10 hours each weekday. Teams within those organizations—including 65 of the Fortune 100—are moving their daily communications from email to Slack. Slack has even reported that organizations using the app see their email cut almost in half, with a 48.6 percent decline on average. So, if email is and has been valuable for ediscovery, logically Slack should be too.
And Slack goes beyond the messages that users type in; users can also upload files of all types—documents, images, GIFs, you name it—or link their Slack with other work management applications. Slack offers integrations to scores of applications, from Google Docs and project-management software like Asana to web-meeting tools Cisco and Zoom and even tools like Salesforce. Slack keeps track of notifications related to all of its interconnected apps, any of which may generate further discoverable information.
In deciding what to request in ediscovery, the focus should be on the scope of permissible discovery, not on what’s “usually” done by other litigants. Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Additionally, “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Rule 401 of the Federal Rules of Evidence reminds us that “evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.”
If your organization uses Slack, there’s bound to be relevant, discoverable information within it. But don’t take our word for it: scan through a few of your work-related channels with an eye toward common legal disputes that arise in your area of business. It’s not hard to imagine unearthing messages that demonstrate an organization’s awareness of a security risk, tasks in integrated project management applications that are designed to limit the damage caused by a known product defect, or subtle evidence of discrimination or bias within sales teams or assignments. All of these could be tremendously relevant in the right kind of case.
Bear in mind that the scope of discoverable information is tempered by the requirement that discovery should be proportional to the dispute. If Slack data were entirely inaccessible, it might be disproportionate to all but the most serious of litigation matters. But as Slack use becomes still more common—and as modern technological solutions for extracting, reviewing, and producing Slack data rise in use—that limitation will provide little shelter for Slack data.
Of course, if you’re going to request Slack data, you’d better be prepared with your own properly preserved Slack data.
PRESERVING SLACK DATA FOR EDISCOVERY
Are you waiting for someone else to request Slack data before you start thinking about how to preserve it? Planning to just skip over Slack until someone forces your hand? Think again. Organizations that reasonably anticipate litigation are under an obligation to preserve relevant, discoverable information—even if no one has asked for it yet.
Rule 37(e) of the Federal Rules of Civil Procedure allows the court to impose sanctions—up to and including dismissal of a claim or directed judgment—anytime that “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and  cannot be restored or replaced through additional discovery.” In other words, your preservation obligations relate to the discoverability of the information in question, not whether that information has been requested.
Earlier this year, a district court reiterated this obligation in Paisley Park Paisley Park Enterprises, Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL) (D. Minn. Mar. 4, 2019). There, the defendants argued that they were not aware of their duty to preserve text messages because the plaintiffs had not advised them that they were interested in that evidence. The court soundly rejected this contention. It stated, “Rule 37 requires the party from whom the information is sought to ensure they are taking reasonable steps to preserve evidence. The rule does not require that the requesting party issue a document preservation letter identifying all types of ESI that it might seek in the future. That burden [to identify and preserve discoverable evidence] rests with the preserving party.” In other words, it’s on litigants themselves, not their opponents, to proactively figure out what evidence they might have and preserve it.
Don’t wait until you’re staring down court sanctions to figure out whether there’s discoverable information lurking in your Slack application or how to preserve, review, and produce it. Start incorporating Slack into your standard ediscovery preservation process right away. At a minimum, you should add Slack to your preservation letters, custodian questionnaires, and in-person interviews. Ensure that you’re preserving text and reactions from public channels, direct messages, and archived channels. And don’t forget that Slack includes more data than just typed messages: you should also preserve any attached files within the Slack application as well as any integration activity logs.
Consider completing an inventory crawl through your organization’s entire Slack application to determine what teams are using Slack, what channels are operating, and where there are direct messages between individuals or groups. This data-mapping effort will help you understand where to direct legal hold notices for Slack data and who to send custodian questionnaires to.
One final word of caution: if you’re using the free version of Slack, your ability to preserve messages will be very limited. With the free version, you can only see your most recent 10,000 messages, and your file storage is limited to 5 GB. Upgrading to a paid version—ideally Slack Enterprise Grid, which enables access to the Slack discovery API—will allow you to not only access your entire message history but to defensibly preserve those messages.
As business communications are migrating over to Slack, it’s only a matter of time before ediscovery of Slack data is commonplace. Besides, Slack is simply too valuable as a source of potential evidence to continue ignoring it or pretending it doesn’t matter.
Will you be ready when Slack data holds the key to your success in a litigation matter? Will you be prepared when an opponent requests production of relevant Slack data? Or will you keep waiting around—and find yourself blindsided by sanctions that you could’ve avoided?