Another Case Discussing Discovery from Slack

As we discussed last year, the use of the workplace collaboration and messaging tool Slack has been growing exponentially, first augmenting and then starting to supplant email usage within many organizations.  nd, with such widespread usage, Slack has started to become a common source for the discovery of relevant materials, with references in cases beginning to appear in 2019 (e.g., Calendar Research v. Stubhub, Milbeck v. Truecar, and Rondevoo Technologies v. HTC America).

Recently, a debate over the discovery of Slack messages arose in another case: Benebone v. Pet Qwerks, et al., No. 8:20-cv-00850-AB-AFMx (C.D. Cal. Feb. 18, 2021). The case was eventually settled, but not before the Magistrate Judge issued an order discussing the discovery of Slack messages.

The Initial Slack Disagreement

In Benebone, the plaintiff used “Slack, as well as standard email, for its internal communications,” with users including the “marketing director, COO, and CEO.”  Consequently, the defendants “sought to include Benebone’s Slack messages in the parties’ Stipulated ESI Order,” but the plaintiff argued that they should be excluded.

The Magistrate Judge ordered briefing and a conference to try to resolve the dispute, during which “the Court concluded that Benebone’s Slack messages are relevant, but it lacked sufficient information to determine whether Slack discovery would be proportional to the needs of the case.” The Magistrate Judge ordered the parties to gather additional information and to meet and confer further about the issue.

The Slack Proportionality Dispute

During this meet and confer process, the plaintiff “informed Defendants that its Slack account contains approximately 30,000 messages” and “estimated that it would cost $110,000 to $255,000 to extract, process, and review these 30,000 messages.” The plaintiff based this estimate on a “blended attorney rate of $400 per hour for Slack review.” The plaintiff argued that, at this cost, “searching and producing documents from Slack would be an undue burden and would not be proportional to the needs of the case.”

The defendants did not agree and moved to compel production of the relevant Slack messages. This motion was accompanied by a declaration from Michael Gutierrez, Director of Forensic Services at Xact Data Discovery/Consilio:

In his declarations, Mr. Gutierrez stated that he has been involved in multiple lawsuits where Slack messages have been produced. He described a number of tools that software vendors have developed to streamline the review and production of Slack messages and explained how extracting, processing, and reviewing Slack messages could take place using currently available software tools.  He also provided a cost estimate for doing so in this case. Mr. Gutierrez stated that Xact/Consilio offers contract review attorneys . . . to conduct the first level review of Slack messages, and he provided a cost estimate of $22,000 for Benebone to find and produce its responsive Slack messages. 

The plaintiff “stood by its prior estimate,” but it “did not provide a declaration from an e-discovery expert to support its conclusions or respond to the evidence provided by Mr. Gutierrez.” The Magistrate Judge held a Zoom hearing regarding the motion to compel at which Mr. Gutierrez also provided testimony.

The Magistrate Judge’s Decision

As noted above, the Magistrate Judge concluded that the Slack messages were almost certainly relevant to the case: “Here, because Benebone uses Slack as part of its internal business communications, there is no real dispute that Benebone’s Slack messages are likely to contain relevant information.” Regarding the question of proportionality, the Magistrate Judge was persuaded by Mr. Gutierrez (“a knowledgeable and credible witness on this subject”) that discovery of Slack messages need not be unduly burdensome:

• “. . . third-party tools have been developed over the past several years for collecting and reviewing Slack messages and that review and production of Slack messages has become comparable to email document production through the use of these tools.”
• “. . . searches likely could be limited to certain Slack channels, users, or custodians – which could significantly reduce the volume of Slack messages requiring review.”
• “. . . it is possible to conduct first-level review of the pertinent Slack messages via contract attorneys for far less than Benebone’s estimated blended rate of $400 per hour.”

Based on this, the Magistrate Judge concluded 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.