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Slacking Off: District Court Warns of Discovery Pitfalls That Can Arise from Third-Party Collaboration Apps

Daniel Boothe

Slacking Off: District Court Warns of Discovery Pitfalls That Can Arise from Third-Party Collaboration Apps
Nitat Termmee via Getty Images

Slack is an instant-messaging program that has been adopted by many corporations because it allows for easier, widespread communication between employees. Slack is part of a large group of new third-party applications that have access to a company’s sensitive data, which are itemized into channels. Electronically Stored Information (ESI) refers to any data stored on electronic media that is subject to be used as evidence in litigation. As illustrated below, discovery requests for ESI that is managed by third-party applications such as Slack have presented new legal challenges.

Historically, the legal field has been notoriously slow in adapting to technological innovation. However, willfully staying ignorant of these new technologies is not a stance that a court will grant much sympathy, as an unfortunate lawyer recently found out in Massachusetts. In Red Wolf Energy Trading, LLC v. Bia Cap. Mgmt., LLC, 626 F. Supp. 3d 478, 493 (D. Mass. 2022), lawyers for the defendants repeatedly disregarded discovery request for Slack channels, claiming that they were incapable of searching for specific Slack data.

Senior District Judge Mark L. Wolf, after issuing numerous stern warnings to the defendant’s lawyers for their compliance with the discovery requests, eventually entered a default judgment in favor of the plaintiffs. Highlighting the failure of defendant’s counsel, Judge Wolf went so far as to say that he had never seen a case that generated more meritorious motions to compel in all his 37 years on the bench. This ruling serves as a reminder that a lawyer is responsible for learning the basics of their client’s technologies and avoiding discovery misconduct. Lawyers are obligated to cooperate in discovery, and a failure to do so could subject a lawyer to sanctions.

Slack channels contain all sorts of data, such as company emails, filings, meeting minutes, and office banter. Nevertheless, discovery requests for Slack data must be limited to relevant information. In Mobile Equity Corp. v. Walmart Inc., No. 2:21-cv-00126-JRG-RSP, (E.D. Tex. Jan. 4, 2022), Magistrate Judge Roy S. Payne realized that requests for numerous Slack channels can incur a large burden on a company. In this case, the plaintiffs requested over 40 different Slack channels from Walmart, which would have included millions of datasets for a corporation of Walmart’s size. Since Walmart’s attorneys were familiar with their client’s usage and implementation of Slack, they were able to effectively analyze the datasets and properly persuade the court which Slack data was not relevant to the issue at hand.

Companies should strive to retain dominion over their ESI and be mindful about which third-party applications have access to their data. Likewise, if a client does use software like Slack, lawyers should familiarize themselves with the technology in order to comply with potential discovery requests and avoid sanctions. Technological competency can be a game-changing skill for any litigator to possess.