A multi-part update series reviewing recent news, resources, and cases related to social media and the technical and legal challenges it creates in eDiscovery
In New Notifications, we reviewed updated social media usage statistics and other evidence of its growing evidentiary significance. In Growing Challenges, we reviewed three areas of growing or potential challenges and related news stories. In Recent Social Media Cases, we reviewed recent cases on discoverability, spoliation, and ephemeral messaging. In this final Part, we discuss recent cases on Slack sources and other topics.
Since we last revisited this topic, there have been a variety of new cases discussing issues related to social media in eDiscovery, including: discoverability, spoliation, ephemeral messaging, Slack sources, and others. Some of these cases were also discussed by XDD Managing Director of Consulting Services Liz Letak in an educational webinar last September and in an episode of XDD’s First Chair podcast last November.
In the case of Calendar Research, LLC v. Stubhub, Inc., et al., No. CV 17-4062 SVW (SSx) (C.D. Cal. Mar. 14, 2019), the plaintiff sought production of relevant Slack messages from the defendants, but the defendant encountered some challenges acquiring the materials and preparing them for production. The defendants were eventually able to make a production of some relevant Slack messages, but that initial production was incomplete, due to a series of issues. These issues led to delays, which led to the plaintiff filing a motion to compel production of the delayed messages and to seek sanctions against the defendants for inaccurately certifying the completeness of their initial productions. The court summarized the issues the defendants encountered:
According to Defendants’ counsel, certain Slack folders were not retrievable at the time of the . . . production because Block & Tackle had used a free account, and full access to the database required a premium account, which Defendants have now obtained. After the upgrade, Slack informed Defendants that it would not allow full corporate export of the entire account without the consent of all parties who used the account. However, it provided a utility tool that allowed Defendants to extract private channels used by Gray and Efremidze. After extracting those files, Defendants were told by StubHub that certain files contained communications subject to its attorney-client privilege. StubHub identified the privileged files, and Defendants have asked their vendor to remove them from the remaining files to be produced. [emphasis added; internal citations omitted]
Finding no evidence of bad faith on the part of the defendants, and given the defendants’ efforts to supplement the initial productions as needed, the court granted the motion to compel production but declined to award the requested adverse inference sanctions and monetary sanctions.
In the case of Leon D. Milbeck v. Truecar, Inc., et al., No. CV 18-02612-SVW (AGRx) (C.D. Cal. May 2, 2019), the plaintiffs requested the production of relevant Slack messages late in the discovery process and eventually pursued a motion to compel the production. The defendants worked with their eDiscovery services provider to offer a detailed explanation of the technical burdens and the time that would be required:
Defendants present a declaration from their eDiscovery provider, which has received 1.67 gigabytes of compressed data from Slack (“Slack data”). “There is no way to isolate any specific information, such as particular channels or users and limit the collection to only that data.” The entire Slack data must be processed before any information can be extracted. Although it is not possible to know the volume without processing, Ms. Anderson relates that, in another unrelated matter, 100 megabytes of Slack data resulted in 1.7 million messages. Applying the same metrics, 1.67 gigabytes of Slack data could generate up to 17 million messages. Ms. Anderson estimates that the initial conversion process could take three to four weeks, followed by another two or more weeks of processing time to address any conversion anomalies. The format of Slack data as extracted text means that a reviewer must scroll through the extracted text to identify the start and end of relevant conversations. [emphasis added; internal citations omitted]
Based on this explanation, and on the “compressed discovery and trial schedule,” the court concluded that it would be impossible for the work to be completed in time for depositions, trial preparation, etc., and declined to compel the production or find fault with the defendants’ efforts: “The parties promptly and diligently began discovery negotiations, and have completed a tremendous amount of discovery in a short period. No one is to blame.” The court did leave open, however, the option for the plaintiff to seek “a continuance of the trial date so that production of Slack data could be accomplished in time to be used in depositions and expert discovery.”
Finally, in the case of Rondevoo Technologies, LLC. v. HTC America, Inc., No. 2:18-CV-01625-TSZ (W.D. Wash. Apr. 8, 2019), the parties preemptively stipulated as part of their “Agreement Regarding Discovery of Electronically Stored Information” that they would forego Slack discovery: “Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved . . . h. Voicemails, Slack, or chat transmissions.”
Subpoenas and the SCA
In the District of Columbia case of Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019), the appellate court reaffirmed the general rule that the Stored Communications Act prevents individual litigants from obtaining covered communications from service providers using subpoenas (absent one of the statute’s explicit exceptions):
Authority from other jurisdictions also favors a plain-language reading of the SCA. As far as we have determined, every court to consider the issue has concluded that the SCA’s general prohibition on disclosure of the contents of covered communications applies to criminal defendants’ subpoenas. . . . Courts have uniformly reached the same conclusion in the context of civil subpoenas on behalf of private litigants. [emphasis added]
Judges on Social Media
In the Wisconsin state case of In re the Paternity of B.J.M., 925 N.W.2d 580 (WI App Feb. 20, 2019), the appellate court reversed an order and remanded the case to proceed under a new judge, after the original judge’s acceptance of a Facebook friend request from a party – prior to issuing a ruling on that party’s motion – “created a great risk of actual bias, resulting in the appearance of partiality.”
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