Ask any e-discovery practitioner, technologist, or service provider what has been the leading source of digital evidence over the past 20 years or so and they’ll probably say something along the lines of “corporate email.” And while likely accurate, what was true in the aughts and teens with respect to how we communicate at work is not necessarily true today. As text and app messaging and online communication platforms such as Slack continue to supplement—and supplant—email communications in the workplace, parties and courts need to consider these technologies’ impact on document preservation and production obligations.
A recent decision provides clues on how courts may treat such electronically stored information (ESI) when considered in the context of traditional discovery concepts such as relevance, proportionality, production format, and possession, custody, and control. Analyzing the requirements of Federal Rule of Civil Procedure 26(b), a court found that information on Slack sought by plaintiffs was relevant but that the nature of the platform created complexities as to the proportionality element such that the discovery was denied. And while the court rejected the plaintiffs’ request for production of certain text message threads, it restated a prior determination on the need to produce other text messages in a format that preserves the integrity of conversation threads.