Published on Dec 6, 2022 
Notions about what constitutes a “document” have significantly changed over the years, leading to increasing complexity for government agencies and regulators in both the discovery process and during investigations. While government agencies and regulators may know that relevant information often can be found among “documents” such as messages and hyperlinked content found in chat and collaboration tools, they may not be aware of recommended practices for requesting such information from adversaries, investigation subjects, or even from their own employees. In his keynote remarks given in November 2022 at a prominent eDiscovery conference, Phil Favro reviewed the changing notions of documents, explored key challenges with chat and collaboration tool “documents,” and discussed practices for addressing the issues.
I am delighted to address a topic of critical importance for those of us handling civil discovery: The impact of the changing nature of documents on civil litigation.
Introduction to Changing Nature of Documents
What is a document? This straightforward question—which elicited a seemingly straightforward response even a couple of decades ago—now yields nothing but a befuddled and convoluted mess. Pose the question to a sophisticated colleague and the response may be one of dismay, bewilderment, or even offense. With the benefit of hindsight, the evolution from 8½ x 11 paper memoranda to emails and Word documents appears almost linear in nature. But there is nothing linear about the growth of data repositories or communication methods, whose seeming expansion in every conceivable direction defies logic. Indeed, such non-linear growth may be staggering to legal professionals in their attempts to stay current with technology generally and its impact on litigation and discovery.
Perhaps nothing suggests change from the paper to the electronic world and its impact on the nature of a document as the following words: “Welcome! You’ve Got Mail!”
What immediately comes to mind when you hear “You’ve Got Mail!”? For those of you who are old enough to remember America Online, is it fondness at the recollection of receiving your first email back in the 1990s? Or perhaps it’s watching Tom Hanks and Meg Ryan in yet another captivating “rom-com?”
Is it elation at the notion that, “once upon time” during the nascent days of the internet, receiving an email was the harbinger of something exciting? Nothing could be further from the truth now. Emails often represent the worst in what we’re trying to accomplish in eDiscovery, particularly with nasty meet and confer letters from opposing counsel or phishing messages from the world’s latest cyber threat.
Perhaps your response is confusion, not now, of course, but perhaps that of someone you know from back in the dawn of the internet age. At that time, many people who heard this sound might have asked whether a letter carrier had just visited the house.
Your immediate reaction may very well been humor or derision. Some of you, at the sound of this antiquated term, might be tempted to laugh about the technologies of yesteryear while others might jeer at the recollection that they or their friends used AOL, which seems ridiculously outdated at this time.
Probably few if any of you though would have suggested “understanding” as your initial and immediate reaction to hearing “You’ve Got Mail.” But by the end of my remarks today, I hope everyone walks away with “understanding” being their primary answer. For understanding is precisely what we need to truly grasp the impact of the changing nature of documents on civil discovery today.
Many of us are old enough to see the effect of technological changes—or what I’ll call the “You’ve Got Mail” phenomenon—on documents. This phenomenon has manifested itself in many ways, but for eDiscovery purposes, it is evident from several examples.
One of those would be the seemingly natural transition from internal memoranda and external letters to email, messaging platforms (including instant messages and then text messages), and now chat and collaboration tools.
Another example is found in storage. In the offices of yesteryear for government and business, organizations relied on filing cabinets for onsite paper document storage and third party vendors for offsite storage. Indeed, most lawyers and legal professionals above 50 can remember—though probably not fondly—their first offsite document inspection which inevitably took place in a dusty, spider-infested storage facility that might have seemed like the legal equivalent of hazing. Now, of course, while organizations still have offsite repositories for old paper documents, such facilities have been replaced by cloud storage for newly generated documents.
A third and final instance I want to reference today includes audio and video tapes. Of course, there are those of us here who can remember cassette and VHS tapes. In junior high school in Los Altos, California, I learned how to develop computer code on a Pet computer in 1983. That code was memorialized and stored on a cassette tape! Tapes eventually transitioned to analog audio and video recordings, and now we have digital recordings and feeds today.
Like “You’ve Got Mail,” each of these innovations has come with its moments of confusion, derision, and probably frustration, too. While I could continue to “walk down memory lane” regarding these changes, I want to spotlight a particular digital age innovation that—perhaps better than any other—encompasses these technological changes reflecting the shifting nature of documents. That innovation is Workplace Chat and Collaboration Tools (“WCTs”). WCTs are technologies like Microsoft 365, Slack, Google Workspace, Zoom, Asana, and many others, which are generally designed to enhance teamwork in the digital world.
At times seamless and effective, WCTs may still be clunky and prove inadequate for accomplishing work that was, once upon a time, done exclusively in person while working from the office. The discovery issues surrounding WCT are, in many instances, both complex and unique. Gaining “understanding” on WCT can help us better grasp this “You’ve Got Mail” phenomenon, avoid the confusion, derision, and frustration that could force us into unnecessary motion practice, and better represent our clients by gaining understanding regarding the technology affecting discovery issues with these tools.
During my remarks, I provide an overview of WCT features, introduce case law that has addressed the discovery of relevant WCT content, and summarize arguments from litigation adversaries on key discovery issues regarding this information. Finally, I will cover why understanding the technological features of WCT can enhance comprehension of adversary positions on the issues and ultimately yield better results for clients in discovery.
Introduction to WCT
What are WCTs? This term generally represents cloud-based messaging and collaboration platforms that have gained increasing prominence over the past several years. Government attorneys should expect the use of these platforms to continue proliferating. These technologies—like social networking applications—provide employees with a highly interactive and customizable platform to communicate with co-workers and share documents. Many users believe these platforms provide a significant upgrade over email or other messaging applications, which they have characterized (rightly or wrongly) as less flexible and too “corporate.”
WCTs generally offer users the ability to communicate by text, audio, or video. WCTs may offer one-to-one and one-to-many messaging capabilities. Slack and Microsoft (through its Teams messaging application) generally offer multifaceted messaging features that consist (more or less) of:
Within a channel or in a direct message, a user may post written electronic messages, audio and video feeds, and a number of different file types. Once posted, all other users subscribed to the channel (or the recipient of the direct message) may access the information.
Some WCTs such as Zoom and Slack have traditionally offered only communication functionality. As a result, Slack and related platforms are grafted into the corporate network and allow users to obtain documents from corporate record keeping systems either locally behind the firewall or in the cloud. In addition, they may be able to access repositories such as Google Drive over which the organization does not exercise control.
Other WCTs such as Microsoft 365 and Google Workspace have a communication platform hosted on top of a cloud repository. Microsoft 365 and Google Workspace offer users software for messaging—Outlook and Teams for Microsoft users and Gmail and G-Chat for Google users—as well as any number of business applications for word processing, spreadsheets, and presentations. Users of these WCTs can seamlessly attach files from those applications to emails or messages. Or they may choose to send a hyperlink to the document from the cloud repository in their communications to recipients. Depending on the permissions granted, recipients may be able to view or edit documents shared by hyperlink from the cloud repository. Recipients could also save the documents locally or elsewhere in the cloud and then proceed to edit that document.
WCTS have already figured prominently in several decisions issued in federal and state courts throughout the country. The recent litigation involving Elon Musk and Twitter over discovery of relevant information from Slack accounts brought national attention to this burgeoning discovery issue. Beyond Twitter, discovery battles have taken place now over the past few years over a variety of issues which in many instances are unique to WCTs or other new age communication methods. These issues include the precise of nature of a relevant “document,” a document’s production format, the nature of an account, and the production of hyperlinked content in family relationships with underlying emails and messages.
Adversarial Positions on the Issues: A Failure to Communicate
Counsel for either party may not understand these or other challenges posed by chat messages when addressing arguments from litigation adversaries over discovery of this information. Let’s look at the issues from the differing perspectives of the parties.
Requesting Parties
Requesting parties may believe that under Rule 34, all messages that comprise a chat string are a “document” or “ESI.” Requesting parties may want all messages within a given “string” to enhance their comprehension on the quality and nature of the issues. Requesting parties may argue that withholding certain messages is analogous to relevance redactions, which courts have generally found impermissible. Requesting parties will ultimately argue that responding parties cannot hide contextual content behind relevance objections, particularly when such information is indivisible from the balance of a chat string.
Requesting parties also want a seat at the proverbial table regarding production format and specifications for chat messages and will invariably insist those items be disclosed at the Rule 26(f) conference—or a subsequent meet and confer—and then memorialized in an ESI Protocol.
One example of this would be how to divide up a chat message “document” into logical time units (e.g., one day, one week, etc.). Requesting parties understandably want this information in a reasonably usable format and to avoid scenarios like that in Charter Commcations Operating, LLC v. Optymyze, LLC, No. 2018-0865-JTL, 2021 WL 1811627 (Del. Chanc. Ct. Jan. 4, 2021) where the responding party produced chat messages as 87,000 separate TIFF emails rather than preserving some semblance of the message exchanges.
Requesting parties also want all attachments to relevant chat messages produced and in family relationships. This includes any embedded or hyperlinked content reflected in those chats such as spreadsheets or other materials stored in cloud repositories like SharePoint, OneDrive, or Google Drive. In response to the inevitable burden objections from responding parties, requesting parties will argue that responding parties cannot withhold relevant documents due to the complex nature of information systems they voluntarily selected. Moreover, requesting parties will assert that linked content is analogous to traditional document attachments and it should be produced in family relationships just as it would be had the message author sent a traditional attachment. They are indistinguishable, argue requesting parties. And responding parties cannot hide behind Nichols v. Noom when other case law such as IQVIA, Inc. v. Veeva Systems, Inc., No. 2:17-cv-00177-CCC-MF, 2019 WL 3069203 (D.N.J. July 11, 2019)holds that such information should be produced in family relationships.
Responding Parties
Responding parties may counter that irrespective of how one characterizes what a “document” is, they are obligated to produce only relevant message exchanges. Therefore, responding parties may posit, they have no obligation to produce irrelevant chat messages under Rule 34, no matter how useful the surrounding content might be for contextual purposes. This is particularly the case since chat strings can encompass several weeks, months, or even years of content. Nor is this issue analogous to relevance redactions (which courts have approved in certain instances) since responding parties are not excising content from a relevant message exchange. Ultimately, responding parties will argue that they are not “hiding from Rule 34,” they’re instead abiding by Rule 26’s requirements.”
Responding parties may also contend that account limitations with certain chat tools may affect their ability to produce relevant documents. Because providers like Slack may maintain legal control over the messages for certain accounts, responding parties—like the defendant in Laub v. Horbaczewski, 17-cv-6210, 2020 WL 7978227 (C.D. Cal. Nov. 2, 2020)—may not be able to produce relevant messages and attachments from Free, Pro, or Business+ accounts.
Moreover, responding parties may not be able to produce all relevant hyperlinked documents, let alone do so in family relationships. Indeed, external factors may force responding parties to produce something less than all relevant hyperlinked documents where—as the court found in Shumway v. Wright, No. 4:19-CV-00058-DN-PK, 2020 WL 1037773 (D. Utah Jan. 13, 2020), report and recommendation adopted, 2020 WL 1038152 (D. Utah Jan. 29, 2020)—a user has moved, modified, revoked permissions to, or deleted a linked document. Moreover, linked documents may be completely unavailable due to retention settings or other automated actions.
Finally, responding parties will undoubtedly turn to Sedona Principle 6 for comfort, asserting that they are best situated to determine how to handle the production of chat message “documents.” As a result, while they will disclose to the requesting party how they intend to divide message content into logical “document” units, they will not be coerced through cooperation into producing documents as requesting parties demand.
Now in one sense, both requesting and responding parties are right in that their positions each have merit. And yet, they are each wrong because there is a failure to communicate, that is to say, a failure to listen, understand, and then act accordingly on the issues. Will dealing with WCTs be another “You’ve Got Mail” moment that elicits confusion and frustration? Or will there finally be understanding and a negotiated resolution? The latter is possible. Why? Not because there needs to be a miracle to get opposing sides to come together. It’s because there is a middle ground on the issues that the parties can reach if they can come to understanding on the technology. Understanding the technological features of WCTs and how they impact discovery obligations can provide a method toward understanding adversarial positions and facilitate resolutions of the disputes over these documents that could otherwise bog down the litigation.
Understand The Technology
Two particular issues on which counsel need to obtain understanding regarding WCTs are account settings and linked documents. Referenced earlier in my hypothetical square-off between counsel for requesting and responding parties, technological issues with account settings and linked documents may create any number of areas of dispute between counsel. Let’s first examine account settings.
Handling the collection or search of messages and other relevant content from WCTs is not the equivalent to handling the collection or search of email. Whether and what a party can collect from or search in its WCTs often turns on what account type the party and its employees are using.
Collection / Slack
On the collection front, Slack provides a helpful example on the challenges counsel may expect to face with WCTs. Slack has four different types of accounts—Free, Pro, Business Plus, and Enterprise Grid. Users’ ability to export message content will depend on their account type. With Slack, you get what you pay for. The more expensive the account, the more rights a user has to obtain information for discovery purposes. The cheaper the account, the greater the restrictions that Slack places on users’ ability to export their documents. For example, Free and Pro account users can obtain as a matter of right messages from public channels. However, they cannot export (or collect) message content from private channels or direct messages without first seeking approval from Slack, which Slack represents will not necessarily be easy to obtain. Nor can Free or Pro account users obtain files that users have attached to their messages. Instead, links to the messages are included in the data export and the user must scramble to match up the particular documents from its storage system with the messages referencing the documents. Business Plus accounts have more rights than Free or Pro account holders, but they still cannot obtain the attached files as a matter of right. Only Enterprise Grid users—the most expensive account type—can obtain message content and file attachments and have access to Slack’s eDiscovery module for purposes of creating a turnkey load file for use in an eDiscovery platform.
If a party has a Free or Pro account, must it upgrade the account to ensure it can access critical documents for discovery purposes? How would a court address this issue? The guidance from case law is uncertain, with decisions coming down on either side of this issue. Compare Calendar Research LLC v. StubHub, Inc., No. 17-cv-4062, 2019 WL 1581406 (C.D. Cal. Mar. 14, 2019) (observing that defendants had to upgrade their Slack account to produce relevant messages) with Laub v. Horbaczewski, 17-cv-6210, 2020 WL 7978227 (C.D. Cal. Nov. 2, 2020) (declining to order defendants to upgrade their Slack account to produce relevant messages).
It behooves counsel then on both sides to obtain understanding on this issue and carefully attempt a negotiated resolution. Resorting to motion practice may seem like the right answer when an adversary is not turning over the requested information, but it may not yield the result counsel are looking for. Instead, it may become a “You’ve Got Mail” moment of confusion or frustration. As Magistrate Judge Jeffrey Cole has articulated on countless occasions:
. . . the court has vast discretion to resolve [discovery] disputes. That discretion means there is no “right” or “wrong” answer . . . the “loser” on a discovery motion might be “right” – in the judgment of some abstract decision makers – but “wrong” in the eyes of another, and thus will have little or no effective recourse given the discretionary nature of discovery motions in general. Deal Genius, LLC v. O2 Cool, LLC, No. 21 C 2046, 2022 WL 874690 (N.D. Ill. Mar. 24, 2022).
Thus, when it comes to collection from WCTs like Slack, counsel for the responding party should attempt to gain understanding on the type of account its client is using and how that will impact its discovery obligations. In turn, counsel for the requesting party should obtain as much information as possible from the responding party about the account type at issue so it has better understanding on the issues and can proceed to negotiate a resolution of production disputes.
Search / Microsoft 365
Search capabilities in WCTs present comparable problems. Perhaps the best WCT example on this front is Microsoft 365. Microsoft 365 offers users different search capabilities depending on the type of account the user has. Some account holders may not have access to eDiscovery search features. Others will only have access to an E3 license with its limited capabilities while those who pay more can obtain an E5 license with more progressive search functionality. Just like with Slack and the collection/export issue, it behooves counsel to try and obtain as much understanding from their client (for responding parties) and their adversary (for requesting parties) about the type of Microsoft 365 license the client is using so each party can have understanding on whether the search being conducted is adequate under the circumstances.
An additional issue—beyond the scope of my remarks today—is whether running searches using an E3 or E5 license satisfies counsel’s obligation to conduct a reasonable inquiry under Federal Rule of Civil Procedure 26(g)(1). See Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., No. 3:19-CV-00014-GNS-LLK, 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021). This is a key issue facing many requesting and responding parties and one which needs to be addressed—once again—with greater understanding among adversaries.
Linked Documents
Beyond account types is the issue of linked documents. As posited in my earlier hypothetical arguments, the production of linked documents seems to be an intractable one. There are equally compelling arguments on each side of the dispute regarding why linked documents should—or should not—be produced in family relationships with underlying communications. And yet, while some parties require judicial intervention to resolve their disputes, other parties have obtained understanding on the issues, acknowledged their differences, and negotiated an ESI Protocol that offers a roadmap for addressing possible disputes over this issue in the future. Compare Porter v. Equinox Holdings, Inc., No. RG19009052, 2022 WL 887242 (Cal. Super. Mar. 17, 2022) (resolving the parties’ dispute over the production of linked documents in family relationships) with In re Omega Healthcare Inv., Inc. Sec. Litig., No. 1:17-cv-08983-NRB (S.D.N.Y. Feb. 9, 2022) (developing provisions to cooperatively address the production of linked documents in family relationships).
This is not to suggest that the parties who do so won’t run into disputes down the road. We have seen in many cases that an ESI Protocol is mere prologue to satellite litigation on discovery issues. But putting a framework in place to handle the production of linked documents in family relationships is all about addressing issues with understanding, which can better facilitate a negotiated resolution down the road.
Conclusion
It’s apparent from the disputes over account types and linked documents that understanding of the technology may not alone eliminate every dispute over discovery issues with WCTs. But having an enhanced understanding on the issues can facilitate resolutions of disputes. Indeed, even for those disputes that do not resolve informally, clearer understanding on disputed issues should allow the parties to crystalize their disagreement and better enable a court to reach a formal resolution. If we can just get past the confusion and frustration of “You’ve Got Mail,” we might be able to arrive at an understanding of the technology, which in turn can yield enhanced comprehension of adversarial positions. This should enable us to more readily grasp the “why” and “what” and then ultimately determine “how” to best address issues with WCTs.
