Anticipation of Litigation Advisor
The Rise of Alternative Communication Apps and Their Impact on E-Discovery
January 21, 2020
By: Blair Wessels
The modern workplace is changing. Many businesses no longer require team members to work from one central physical location. Instead, with a laptop and a wireless internet connection, businesses and their employees have the flexibility to work from almost anywhere. The rise of the virtual workplace means that businesses and software developers are always looking for more efficient ways to communicate, process, and store electronic information.
Enter: Slack. Marketed as a “collaboration hub” and an alternative to email, Slack is a communications platform that functions both as a data repository and a high-tech chat room.[1] Rather than utilizing separate digital workspaces for email, projects, documents, files, online chats, etc., Slack combines these once separate functions in one streamlined multipurpose app.[2] In Slack, all data is categorized into “channels” where employees can share messages, files, or other relevant information, organized for a specific project, department, or team.[3]
Digital workspaces like Slack are on the rise. In September 2019, Slack announced that over 12 million people use Slack, and the company was recently valued at $37 billion on the public market.[4] According to Slack’s website, 65 of the Fortune 100 companies have incorporated Slack into their business practices.[5] Some of the companies that use Slack include Trivago, 21st Century Fox, and HelloFresh.[6]
One of the more interesting aspects of the Slack platform is that it stores all information in a searchable archive.[7] Slack’s default is to save and archive all information; however, individual users can change their retention settings and even edit and delete messages.[8] Because everything that passes through Slack is saved to an archive by default, Slack can generate a large amount of data; even though Slack data is searchable, that does not always mean the information is easily accessible for discovery purposes.
In theory, Slack is perfect for discovery: it is a one-stop shop for all conversations and company knowledge stored on one platform.[9] However, because Slack is still a relatively new technology, discovering Slack data can present challenges, particularly with review and production. For example, when data is exported directly from Slack, it is output as unreadable code.[10] Moreover, an archived Slack channel may need to be restored in its entirety to be properly searched and reviewed, meaning considerable amounts of nonresponsive data might need to be processed. Therefore, parties often challenge the production of Slack discovery, arguing that the burden and expense to produce Slack data is too great.[11]
The United States District Court for the Central District of California recently addressed e-discovery issues arising from a party’s use of Slack. In Milbeck v. TrueCar, Inc., the plaintiffs sought to discover electronic communications between TrueCar and another one of its affinity partners that had been exchanged using Slack.[12] TrueCar argued that the burden and expense of producing the Slack data outweighed any benefit because “[t]he entire Slack data must be processed before any information can be extracted.”[13] TrueCar had 1.67 gigabytes of compressed data from Slack, which could equate to as many as 17 million messages.[14] Because of Slack’s unique channel platform, TrueCar argued that, according to its e-discovery provider, manual review was necessary to identify the start and end of relevant conversations.[15] Ultimately, the court denied the plaintiff’s request for production, finding that production of the Slack data was not feasible given the other requested relevant discovery and the timeline for trial.[16]
Obviously, the TrueCar case does not give license to businesses to move their communications to Slack as a means of avoiding future discovery obligations. However, the TrueCar case demonstrates that Slack and other digital workspaces present challenges to traditional e-discovery methods because such methods are not equipped to sift through “channels” or chat rooms. These challenges notwithstanding, if attorneys fail to obtain Slack data, they could be missing valuable information needed to litigate a case. If a client uses Slack, then e-discovery lawyers need to educate themselves on how Slack operates and how the client uses Slack in the day-to-day operations of the company. Prior to any litigation, e-discovery lawyers should develop a plan to obtain, review, and produce Slack data. Further, companies should instruct all employees to use the same default retention settings to ensure that data is not lost or changed. Although telephone and email may still be the primary means of communication in our society, the times are changing, and e-discovery lawyers and their clients must be ready to meet those changes.
Author: Blair Wessels, Associate, Litigation Practice Group
© January 2020, Jackson Kelly PLLC
[1] The Lawyer’s Guide to Discovery and Investigations in Slack, logikcull, https://www.logikcull.com/slack (last visited Dec. 27, 2019).
[2] What is Slack?, https://slack.com/help/articles/ (last visited Dec. 27, 2019).
[3] What is a channel?, https://slack.com/help/articles/ (last visited Dec. 27, 2019).
[4] Rosalie Chan, Slack says that while its user numbers still lag Microsoft's, what really matters is that users love its app a lot, Business Insider (Oct. 10, 2019, 8:15 PM), https://www.businessinsider.com/slack-daily-active-users-microsoft-teams-2019-10.
[5] About us, https://slack.com/about (last visited Jan. 2, 2020).
[6] Features, https://slack.com/features (last visited Jan. 2, 2020).
[7] Laura Palk, Gone but Not Forgotten: Does (or Should) the Use of Self-Destructing Messaging Applications Trigger Corporate Governance Duties?, 7 Harv. Bus. L. Rev. 115, 117 (2017); see also Kevin Maney, Beyond Email: SnapChat, Slack, Yik Yak and Cyber Dust Are the New Frontier of Communication, Newsweek (Mar. 23, 2015), https://www.newsweek.com/2015/04/03/beyond-email-snapchat-slack-yik-yak-and-cyber-dust-are-new-frontier-316031.html.
[8] The Lawyer’s Guide to Discovery and Investigations in Slack, supra note 1.
[9] See Casey C. Sullivan, Sample Letter Brief on Slack Data in Discovery and Investigations, logikcull, https://www.logikcull.com/blog/sample-letter-brief-on-slack-data-in-discovery-and-investigations (last visited Dec. 30, 2019).
[10] Id.
[11] See Milbeck v. TrueCar, Inc., No. CV-18-02612-SVW, 2019 WL 4570017, at *2 (C.D. Cal. May 2, 2019).
[12] Id. at *1.
[13] Id. at *2.
[14] Id.
[15] Id. at *3.
[16] Id.