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Court Rejects Slack Production, Spotlights Discovery Pitfalls for Requesting Parties

Court Rejects Slack Production

Discovery issues associated with Slack data have typically focused on responding parties. However, a recent court order rejecting production of Slack communications should be cause for concern among requesting parties. In Laub v. Horbaczewski, the court held that relevant Slack messages were not reasonably accessible and beyond the responding party’s possession, custody, or control. The holding from Laub—which lacks supporting analysis, pertinent legal authority, and a fulsome understanding of the Slack “Standard Export” process—could be problematic on multiple levels for requesting parties if followed by other courts on Slack discovery issues.

Slack Discovery Challenges and Responding Parties 

Discovery of Slack data has generally roiled responding parties as they have grappled with the collection difficulties associated with producing relevant Slack communications. Many of those difficulties arise from restrictions Slack has placed on users’ ability to export data from certain Slack accounts.

“Free” or “Standard” Slack account users are limited to Slack’s “Standard Export” feature. Standard Export permits users to export messages posted in public channels where the user owns the specific channel in question, but does not allow them to automatically obtain private channel communications or direct messages. Instead, users must submit a particularized application to Slack for such content that justifies the nature of a request, which Slack may or may not accept.

To more readily ensure they can obtain private channel and direct message content, responding parties have upgraded their Slack service—at a significant cost—to either a “Plus” (for Slack’s “Corporate Export” service) or “Enterprise Grid” (for Slack’s “Discovery API” service) account.

Laub Changes the Calculus for Slack Discovery

The limitations with Slack collections from Free and Standard accounts were on display in Laub v. Horbaczewski. In this breach of contract matter, plaintiffs sought on multiple occasions to compel production of relevant Slack communications from defendants. In each instance, the court denied plaintiffs’ request.

The First Order

In its first order, the court—relying exclusively on a declaration from defendants—observed as follows:

  • Defendants had a Free account.
  • Slack “does not permit a customer direct access to retrieve all archived files” from a Free account.
  • Free account holders may only export their most recent 10,000 messages.
  • Defendants could export all of their “historical data” from Slack if they upgraded to a Plus account.
  • The upgrade cost would be $13,350.

Based on the foregoing, the court found that the requested Slack data was “not reasonably accessible” pursuant to Federal Rule of Civil Procedure 26(b)(2)(B). “More importantly,” the court held that “the ESI housed at Slack.com is not within [defendants’] possession, custody, and control.” The order does not offer any analysis as to why the Slack messages at issue were not reasonably accessible or outside defendants’ possession, custody, or control.[1]

In closing, the court observed that its ruling was without prejudice and that plaintiffs could “seek further discovery from Defendants related to the Slack.com workspace.” Alternatively, the court suggested serving a Rule 45 subpoena on Slack for the requested information.[2]

The Second Order

Plaintiffs renewed their request for defendants’ relevant Slack communications after Slack predictably refused to produce Slack messages in response to plaintiffs’ subpoena. This time around, plaintiffs argued that they were entitled to production of private messages involving one of the plaintiffs. Plaintiffs also argued that issues of accessibility and possession, custody, or control were no longer at issue since defendants had upgraded their Slack account.

The court did acknowledge the relevancy of the messages at issue, but still denied their production, this time on the basis of proportionality. However, the court did not apply the FRCP 26(b)(1) proportionality standards to the Slack data. Instead, the court referenced its earlier ruling, which rejected production on not reasonably accessible and possession, custody, or control grounds.[3]

The court also disposed of plaintiffs’ argument regarding defendants’ Slack account upgrade. Because defendants only upgraded to a Standard account, they were still confined to Standard Export and argued—incorrectly—that they were forbidden from accessing the private Slack messages at issue.[4] The court also found it noteworthy that plaintiffs did not dispute, nor did they offer contrary evidence to address, defendants’ representations regarding “their level of access to the messages.”

The Impact of Laub on Slack Discovery and Other Observations

Laub is troubling on several levels. First, Laub is clearly a bad decision for requesting parties. By holding that data stored in Free and Standard accounts is neither reasonably accessible nor within a user’s possession, custody, or control, Laub has potentially placed entire categories of relevant communications beyond the scope of discovery.

Laub also shows that discovery of Slack data remains an unsettled area of the law. Indeed, the court’s holdings run contrary to the well-reasoned decision of Calendar Research LLC v. StubHub, Inc., which ordered production of relevant Slack data. Until new cases provide further clarity, a court’s determination of the issues will largely turn on the effectiveness of a party’s advocacy. All of which may yet be subject to change depending on how Salesforce configures and deploys Slack after the acquisition has been finalized.

In addition, Laub’s analysis of Slack’s Standard Export features is flawed. Standard Export may allow users to obtain private and direct messages if they submit a particularized request to Slack. This fact alone—which neither the court nor the parties addressed—undermines Laub’s position that Slack data was not reasonably accessible and beyond the possession, custody, or control of defendants. It also points to the need to engage experts who can educate the courts and counsel on complex communication and information system features.

Finally, Laub tacitly sanctions the use of an information system that by its very nature thwarts discovery of relevant information. Such a ruling undermines proportionality standards, along with the majority rule that responding parties may not rely on antiquated, disorganized, or anachronistic recordkeeping systems to withstand legitimate discovery requests.


 

[1]Laub v. Horbaczewski, 17-cv-6210 (C.D. Cal. Aug. 29, 2018), ECF No. 72 (Minutes of Telephonic Conference Re: Motion re Informal Discovery Dispute).

[2] Such a subpoena would per se violate the Stored Communications Act. See generally The Sedona Conference, Primer on Social Media, Second Ed., 20 Sedona Conf. J. 1 (2019).

[3]Laub v. Horbaczewski, 17-cv-6210, 2020 WL 7978227 (C.D. Cal. Nov. 17, 2020).

[4] Defendants’ position is wholly inaccurate. SeeGuide to Slack import and export tools, Slack, https://slack.com/help/articles/204897248-Guide-to-Slack-import-and-export-tools#toolsbyplan; Philip Favro, Slack Discovery: Key Issues and Challenges, Practical Law (Fall 2020).

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.
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