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eDiscovery Cases Spotlight IG Best Practices for Workplace Collaboration Tools

Workplace Collaboration Tools

Organizations are increasingly using workplace collaboration tools like Microsoft Teams and Slack. With the proliferation of these tools, litigants are now seeking relevant collaboration tool messages in discovery. Over the past year, several courts have issued orders addressing preservation and production obligations for relevant content from those tools. The cases are instructive on how organizations should structure the use and configuration of retention settings for those tools as part of their information governance strategy.

Instant Messaging Cases

Some insightful cases dealing with these issues arise in the context of corporate instant messaging programs like Microsoft Lync, Skype, and Cisco Jabber. For example, King v. Catholic Health Initiatives involved questions regarding the production of relevant messages from Lync as well as relevant emails.[1] Defendant had neglected to preserve active copies of the emails in question when it failed to suspend its 30-day retention policy for “non-essential correspondence” after a duty to preserve attached. The court ordered defendant to retrieve a backup copy of the alleged harasser’s email account.

While faulting defendant for not preserving relevant email, the court made no such finding regarding messages from Lync. Unlike email, defendant did not configure Lync to retain messages. Instead, Lync messages were kept only where a particular user had enabled their retention. Because defendant produced the relevant Lync messages that its custodians had saved, it had “no further duty to supplement instant messages.”

Similarly, in Williams v. United Health Group, the court refused to fault defendant for not preserving or producing additional instant messages from Cisco Jabber.[2] Plaintiff had sought production of messages she exchanged on Jabber with her former colleagues during her employment with defendant. However, defendant had few relevant messages because Jabber was not configured to retain content. The only responsive messages that were produced came from custodians who took screenshots of particular messages. While plaintiff maintained that such a production was both under-inclusive (because additional messages that were exchanged should have been preserved) and insufficient (screenshots were an inappropriate production method), the court rejected these arguments, ultimately deferring to defendant’s strategic decision to not retain Jabber messages.

King and Williams both demonstrate that courts will generally defer to an organization’s business decision to not retain instant messages. Neither of the courts criticized defendants for configuring their instant messaging programs to not keep messages. Instead, those parties were only obligated to preserve and produce relevant messages their employees may have unilaterally maintained on a one-off basis.

In like manner, courts will also respect an organization’s decision to retain instant messages for a particular period of time. If organizations configure their instant messaging programs to keep messages, they must preserve that content (if relevant) after a duty to preserve arises. For example, in Franklin v. Howard Brown Health Center, defendant—unlike King and Williams—had set a two year retention period for Lync messages.[3] When defendant failed to preserve relevant messages after a duty to preserve triggered, this eventually led the court to impose sanctions on defendant for their spoliation.

Application to Workplace Collaboration Tools

This trend—that courts’ preservation and production expectations will dovetail according to an organization’s information retention choices—is equally applicable to workplace collaboration tools. This is because instant messaging systems are generally considered technological and analogous predecessors to collaboration tools such as Teams and Slack. Like instant messaging, collaboration tools provide internal messaging functionality. While Teams and Slack have enhanced features over what Lync and Skype previously offered, at their heart, they provide an analogous communication concept: keeping colleagues connected through a more efficient medium than email.

That courts will treat collaboration tools similar to instant messaging programs is borne out by Calendar Research LLC v. StubHub, Inc.,[4] in which the court compelled defendants to produce only those Slack messages over which they had control and that they programmed Slack to retain. Other court decisions that have compelled production of Slack messages are consistent with this trend.[5]

IG Best Practices

Organizations with workplace collaboration tools should consider this trend when determining the retention period (or periods) they should apply to information exchanged on these tools. Such a decision requires careful deliberation. Organizations using Slack or Teams ought to examine the different public and private channels and direct message strings (Slack), or team discussions, chat strings, and storage options for attachments (Teams). The different communication channels within these tools will have data that ranges from high-value business information to messages that are “banal, puerile, profane and culinary” and thus offer no value to the enterprise.[6] Indeed, with so much of the information exchanged over corporate messaging programs having little to no business value,[7] it’s no wonder the defendant organizations in King and Williams configured their systems to not retain instant messages.

Technology permitting, organizations will thus wish to set differing retention periods for different channels, message strings, teams, and so forth. Such a process—which involves data mapping and setting retention periods—should not be done in a vacuum. Instead, it should be a holistic exercise that is performed consistently and in conjunction with the balance of the organization’s data. Doing so will more readily ensure that organizations have developed reasonable, good faith policies and practices surrounding their information retention and disposition choices. All of which will inure to their benefit in litigation when courts are asked to evaluate corporate retention choices regarding information and any corresponding preservation and production obligations.

[1] King v. Catholic Health Initiatives, No. 8:18-cv-0326, 2019 WL 6699705 (D. Neb. Dec. 9, 2019).

[2] Williams v. United Health Group, No. 2:18-cv-2096, 2020 WL 528604 (D. Kan. Feb. 3, 2020).

[3] Franklin v. Howard Brown Health Center, 17-cv-8376, 2018 WL 4784668 (N.D. Ill. Oct. 4, 2018); report and recommendation adopted, 2018 WL 5831995 (N.D. Ill. Nov. 7, 2018).

[4] Calendar Research LLC v. StubHub, Inc., No. 17-cv-4062, 2019 WL 1581406 (C.D. Cal. Mar. 14, 2019).

[5] West Publishing Corp. v. LegalEase Solutions, LLC, No. 18-cv-1445, 2019 WL 8014512 (D. Minn. Nov. 22, 2019).

[6] Oracle America, Inc. v. United States, 144 Fed.Cl. 88 (2019).

[7] Oracle America, Inc. v. United States, 144 Fed.Cl. 88 (2019) (discussing the range of messages defendant’s representatives exchanged on Slack).

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.