Recent E-Discovery Cases Spotlight IG Best Practices for 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 in discovery-relevant messages from collaboration tools. 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. 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. 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. 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 v. StubHub, 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.

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 (Oracle America, Inc. v. United States). Indeed, with so much of the information exchanged over corporate messaging programs having little to no business value, 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 consistent 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.

Philip Favro is a consultant for Driven, Inc. where he advises organizations and their counsel on issues relating to the discovery process and information governance.