For more than three decades, email has remained the most widely adopted method of business communication for organizations. In recent years, a new category of cloud-based team communication and collaboration platforms, including Slack, Microsoft Teams, Zoom and Discord, have emerged and gained popularity as alternatives to traditional email communication. These collaboration platforms offer a wide range of centralized, customizable communication tools — including individual / group chat messaging, videoconferencing and teleconferencing — along with a variety of flexible features for creating, storing, organizing, sharing and collaboratively editing using both computers and mobile devices.

While collaboration platforms have been around in various forms for several years, the arrival of COVID-19 at the beginning of 2020 brought with it an explosion in the organizational use of these applications, as businesses turned to the enhanced, real-time messaging and video / teleconferencing features of these tools to keep a remote workforce connected. Today, collaboration platforms like Slack are used by more than 65 of the Fortune 100 companies[1] and thousands of organizations worldwide. With more and more companies electing to move to full-time remote or hybrid remote-office work models, collaboration tools like Slack and Teams are expected to only grow as a principal mode of business communication. This is true even for organizations returning to a traditional office-centric work model, as many employees have come to prefer the real-time connectedness, customization and ease of use of modern collaboration platforms over traditional email for many types of business communications.

Another Discoverable Source of ESI

With the recent increase in organizational use of collaboration platforms like Slack, Teams and Zoom, the data created and stored within these applications has become an important source of potentially discoverable electronically stored information (“ESI”). Organizations that use these tools have a duty to preserve information maintained in these platforms as it relates to discovery and other legal processes. As collaboration platforms typically generate and store a richer and substantially more voluminous amount of potentially discoverable ESI than traditional data sources such as email, they are increasingly viewed by legal professionals as an important source of evidence in litigation, investigations and compliance matters.

Courts have begun to acknowledge the discoverability of ESI from modern communication and collaboration platforms. In one of the few published cases on the subject, In Benebone v. Pet Qwerks, et al., No. 8:20-cv-00850-AB-AFMx (C.D. Cal. Feb. 18, 2021)[2], a patent infringement lawsuit involving pet product manufacturers, the court granted the defendants’ motion to compel production of Slack communications responsive to their document requests. Although the court recognized the relative newness of modern communication tools like Slack, it found that — because Slack was routinely used by plaintiff for standard internal business communications — there was no real dispute that the Slack messages being sought were likely to contain relevant information and therefore were discoverable. The central question addressed by the court was whether the requirement to search for and produce responsive Slack messages would be unduly burdensome and disproportionate to the needs of this case. After considering the testimony of the defendants’ expert, which described the various tools developed over time to assist with the collection and review of Slack messages, the court found that “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case — if the requests and searches are appropriately limited and focused.”[3]

Discovery Challenges for Collaboration Platform ESI

As email did when it arrived as a key source of discoverable data in the late 1990s, the recent emergence of collaboration platform content as a source of potentially discoverable ESI brings several novel and complex challenges that today’s legal professionals will need to grapple with. These challenges span each phase of the traditional e-discovery life cycle, from identification, preservation and collection, through search, review and production.

Many of the e-discovery challenges associated with this new category of communication tools arise from the way data is created, stored and organized within these platforms. Legal professionals have historically focused on documents, including emails, word processing files, spreadsheets and image files (PDF, JPEG, TIFF), as the most relevant unit of information in discovery. Very little of the information found in collaboration platforms like Slack, Teams and Zoom is maintained in a traditional document format. Rather, most of their content is stored in a semi-structured format as disjointed groupings of short-message text, or “chats,” along with other media file types, all stored in a dynamically interrelated data structure specific to each platform. A single Slack or Teams conversation, for example, may contain individual text messages (both public and private), long message threads involving multiple internal and external users, document attachments, images, video and other media, emojis, calendar events, metadata relating to edits / deletions and other user actions, hyperlinks to additional external data sources, applications and various other content — all communicated as short, informal “chats” organized by Message, Channel or Integration (Slack) or by Chat or Team (MSFT Teams). While files traditionally viewed as “documents” for e-discovery purposes (word processing files, spreadsheets, image files, etc.) may be among the data stored in these applications, they typically represent a small fraction of discoverable content.

Managing discovery of ESI from collaboration platforms will require legal professionals to abandon concepts that have long governed the discovery of traditional sources of ESI. Within these applications, the concept of document is somewhat arbitrary and ineffective as a unit of organization for search, review and production. What constitutes a document? A single message? All messages within a specified timeframe (day / week / month)? An entire message thread? All messages relating to a single user? All content associated with a specific Channel or Team? Similarly, the concept of custodian, which has long guided legal professionals’ understanding of data ownership and attribution, will also need to be reconsidered. By their nature, collaboration platforms allow participation by large numbers of individual users, both internal and external, formal members of a group and ad-hoc additions. Users will frequently have access to numerous public and private, one-on-one and group-level conversations, along with multiple public and private content “groups” (Channels / Teams), all with varying degrees of direct, individual engagement by the user. Is it appropriate to consider an employee the “custodian” of all content to which he / she has access within the platform, such that they can be considered as “owning” or “controlling” this information? Do custodians “own” or “control” communications (or Channels / Teams) in which they are active participants? How should this be determined? At present, there are no established rules or practices to help answer these complex but essential questions.

Addressing the Challenges of Collaboration Platform ESI

The complexities of collaboration platform discovery will need to be addressed at the earliest stages of discovery, when potentially relevant ESI is identified and preserved, and before ESI protocols are established. Legal professionals will need to add collaboration platforms like Slack and Teams to their checklists of potentially discoverable data sources probed during initial IT interviews, which should include questions about organizational use of these platforms, specific licensing levels and relevant retention schedules and policies. Detailed questions about individual employee usage and retention practices within these tools will also need to be added to standard custodian ESI questionnaires, allowing counsel to identify specific content deemed potentially responsive and discoverable, thus avoiding the need to collect and review all content to which an employee has access. Adequate due diligence might also require an independent, first-hand inquiry of the data structure and content of the platform to identify potentially discoverable ESI. Spending the time at the outset of a matter to capture this information will assist the legal professional in their meet-and-confer discussions along with the negotiation of ESI protocols.

Obtaining the clearest picture of potentially responsive ESI within an organization’s collaboration platform is critical to defensibly limiting the scope of discovery and reducing the cost and burden of producing ESI from these systems. While general arguments of burden and proportionality are likely to be ineffective in foreclosing consideration of these sources altogether, successfully challenging requests deemed overly broad will still rely on narrowly tailored arguments resting in both principles. For example, it is unlikely that a court will side with a requesting party’s argument that it is entitled to all message content available to an individual user within Slack, as opposed to a more limited request of specific communication threads or Channels that relate more directly to the topics at issue in the matter. Developing narrow arguments that a specific request for collaboration platform ESI is unduly burdensome and disproportionate to the needs of a matter requires the legal professional to spend time at the outset of a matter obtaining clear information about both organizational and individual usage of these platforms.

Discovery of collaboration platform data brings unique challenges relating to potential spoliation of evidence. Once litigation has commenced or is reasonably anticipated, legal professionals will need to take appropriate steps to ensure data from these platforms is properly preserved and captured within applicable legal hold protocols. This will require an understanding of the complex data retention rules and schedules inherent to these platforms, which can vary based on application, type of license maintained by an organization, implementation approach and specific retention and deletion permissions granted to various levels of users within the platform. To the extent possible, user-level rights to delete or edit existing communications should be suspended, and steps should be taken to immediately preserve potentially responsive content before further spoliation can occur.

The collection, processing, search, review and production of ESI from today’s collaboration platforms brings an additional set of challenges for legal professionals. The data structure and storage architecture of collaboration tools like Slack and Teams is more complex and dynamic than traditional email applications like O365 and G Suite, making collection of data from these platforms more complicated than email collection. For example, data exported from Slack is presented as thousands of individual JSON files (JavaScript Object Notation), a simple file format that is typically used to transmit data from web application to server. In their native format, JSON files look like continuous rows of computer code that are completely indecipherable to the nontechnical reviewer. Within Teams, potentially discoverable ESI is stored in multiple independent locations and applications that must be considered at the time of collection. One-on-one, public messages are stored in the individual user’s mailbox, public Team or “channel” messages are maintained in the various group mailboxes associated with the Team, and files uploaded within messages and Teams are stored in SharePoint and OneDrive. Given these complexities, collecting, processing and reviewing ESI from these applications will frequently require the use of special third-party tools that are capable of both capturing the targeted information as well as converting it into a format that allows legal professionals to search, review and produce content within a standard e-discovery application.

Discovery of collaboration platform ESI will likely also alter the way legal professionals cull, search and review information for production. Standard date, keyword and metadata-based searches, which have long dominated discovery of traditional data formats like email and productivity application files (MSFT Office), are less relevant for collaboration platform ESI due to the differences in the content organization, format and metadata available in these platforms. As was the case for the concepts of document and custodian, traditional keyword, date and metadata search techniques will likely become obsolete for collaboration platform ESI, given the way data is created and stored in these applications. Legal professionals will need to devise additional, more effective approaches to organize and search collaboration platform content for review and production, as well as make sure they have access to a review platform technology that can handle the complex data structures and short-message file formats associated with these applications.

Conclusion

The recent surge in popularity of modern communication and collaboration platforms such as Slack and Teams — a trend exponentially accelerated during the past year due to the global COVID-19 pandemic — will have significant impact on e-discovery in ways we are only just beginning to appreciate. Although discovery of information from these collaboration platforms has not yet become as ubiquitous as traditional data sources such as email, this will change rapidly as more organizations adopt these tools for their standard business communications. Although they will likely pose complex challenges for legal practitioners in the near term, the volume and richness of information captured in these platforms will make them an invaluable and inexorable source of evidence in litigation, internal investigations and compliance matters for years to come. It is therefore critical for organizations and legal professionals to take steps now to better understand how these tools are being used, along with best practices for preserving and analyzing the information contained in these platforms.