July 11, 2025 • 18 mins
The digital discovery landscape constantly evolves, creating new challenges for litigators navigating electronically stored information. Judge Godbey's March 2025 decision in Yvonne v. Solera Holdings exposes critical gaps between technology and legal frameworks that every attorney should understand.<br><br>At the heart of this employment discrimination case lies a precedent-setting ruling about Slack messages that should alarm litigation professionals. The court found that because the defendant lacked an export-capable Slack plan, they had no "possession, custody, or control" over potentially relevant communications. This troubling conclusion effectively rewards companies for maintaining lower-tier communication platforms that shield evidence from discovery obligations. For litigators, this underscores the urgent need to understand client communication systems before disputes arise.<br><br>The decision offers a masterclass in discovery burden allocation. Judge Godbey meticulously outlines how parties objecting to terms as "vague and ambiguous" must specifically demonstrate that ambiguity—not merely assert it. Similarly, the stark contrast between failed Slack requests and successful Chatter demands illustrates how evidence of relevance dramatically changes outcomes. A former employee's declaration about discriminatory comments provided the necessary foundation for compelling Chatter communications, while the absence of similar evidence doomed the Slack requests.<br><br>Privacy considerations emerge as another crucial theme, with the court protecting non-party supervisors' performance records despite their potential relevance. Savvy attorneys should anticipate such objections by proactively proposing redactions or protective orders rather than leaving these determinations entirely to judicial discretion. The lesson? Discovery success depends on meeting your burden, understanding technical limitations, and anticipating counterarguments before they arise. When it comes to modern ESI discovery, what you don't know absolutely can hurt your case.
Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:36):
Thank you, hi, and welcome to our Case of the
Week segment on our Meet andConfer podcast, ediscovery and
Information Law, as well as theCEO and founder of Minerva 26,
where we take the insights fromour practice at ESI Attorneys
and provide a strategic commandcenter for litigators to
leverage the power of ESI.
Thanks so much for joining metoday.
Our case of the week segment isbrought to you by Minerva 26 in
(00:59):
partnership with ASEDS and theamazing Deja Miller, who has
helped me this morning because Isnap food things.
Each week on this segment, Ichoose a recent decision on
e-discovery issues and highlightthe practical considerations
for counsel to apply in theirpractice and for other legal
professionals to know about.
In our case this week, theparties are before the court on
(01:21):
a fairly routine competingmotions for compel, but the
court's decision offers somereally useful practical lessons
for you to take intoconsideration.
As always, we'll include thelink to the decision and other
materials that we discuss in theshow notes, so feel free to
dive in there to read the actualdecision.
All right, this week's casecomes to us from Yvonne versus
(01:43):
Solera Holdings.
This is a decision from March12th of 2025 from United States
District Judge David Godbey.
Judge Godbey has 38 decisionsin our Minerva 26 case law
database.
He's experienced at dealingwith ESI related issues in terms
of those decisions and we'regoing to talk through some of
(02:04):
his thinking today.
The issues for this decision,as always, include slack,
possession, custody control,instant messaging, failure to
produce and proportionality.
Now, this motion to Capellarose as part of an employment
discrimination matter in whichboth parties are arguing for the
production of documents as wellas responses to interrogatories
(02:26):
and requests for admission.
While we usually break out thefacts and analysis of each
decision, here on the case ofthe week we're going to change
it up a little bit going forwardand in this particular decision
, judge Godby rolls all thefacts together in ruling on both
motions, so we just kind ofcombined facts and analysis
together.
The first and most importantpart of this decision is right
(02:47):
at the outset, where JudgeGodbey talks about the legal
standard for discovery under thefederal rules of civil
procedure.
This is a section that isalmost always included in every
decision that we see ondiscovery, but Judge Godbey does
a really great job ofarticulating it for you, so I'm
going to lay it out.
If you're drafting a motion tocompel in federal court, this is
(03:09):
the language that you want tofocus on, and it's key because
it focuses on the rules and howthey have been interpreted.
That is your entire goal inmaking a motion to show why the
rules allow you to do what youare asking for.
The case law is a secondaryinterpretation of those rules on
a given set of facts.
Here's that quote, and it's along one, but it's very
(03:32):
important to pay attention to.
Federal Rule of Civil Procedure26 allows parties to obtain
discovery regarding anynon-privileged matter that is
relevant to any party's claim ordefense and proportional to the
needs of the case.
A litigant may request theproduction of documents falling
within the scope of Rule 26Bfrom another party if the
(03:55):
documents are in that party'spossession, custody or control.
A litigant may also serve onanother party a written request
to admit the truth of anymatters within the scope of Rule
26B1 regarding the facts,application of law to the facts
or opinions about either.
Further, a litigant may serveinterrogatories on another party
(04:17):
relating to any matter that maybe inquired into under Rule 26B
inquired into under Rule 26b Toenforce discovery rights.
A party seeking discovery maymove for an order compelling any
answer, designation, productionor inspection.
The Fifth Circuit requires aparty seeking to prevent
discovery to specify why thediscovery is not relevant or
(04:40):
show that it fails theproportionality requirements.
Courts also construe relevancebroadly, as a document need not
by itself prove or disprove aclaim or defense or have a
strong probative force to berelevant.
A district court has widediscretion to supervise
discovery, however, and it maylimit discovery if it would be
(05:04):
unreasonably cumulative, couldbe obtained more easily from a
different source, is notproportional to the needs of the
case, or if the burden orexpense of the proposed
discovery outweighs itspotential benefit.
Close quote Now that's a longone, but it literally lays out
for you, step by step in therules, exactly what your
analysis needs to be on theissues that are raised in this
(05:26):
motion to compel.
In these motions to compel, Ishould say, because we've got
two Now with that standard as abackup.
Judge Godfrey then looked atinitially at the defendant's
motion to compel.
That motion sought to overruleplaintiff's objections to
interrogatories and requests foradmission made to the terms
used by the defendants in theirrequests.
(05:48):
Defendants' interrogatories andrequests for admission included
terms including, quotederogatory language about sexual
orientation, race-baseddiscrimination, including racial
slurs and misogynistic slurs.
Close quote Now, all of thoseterms seem pretty easily
definable and that's exactlywhat the court said in granting
(06:09):
the motion and compelling theplaintiff to respond.
But it's what comes next that Iwant you to pay attention to.
The court said that quote aparty objecting to discovery as
vague and ambiguous has theburden to show such vagueness
and ambiguity and must explainthe specific and particular way
in which a request is vagueclose quote.
And the court found here thatthe plaintiff had not done that.
(06:32):
Now, again on case of the weekand we see this regularly here a
party arguing for emotion hasto meet their burden on what
needs to be shown.
It is a huge waste of clientresources when you don't make
the argument as to why it's hardthat can persuade the court.
Now, accepting, of course, thatI am always Monday morning
(06:55):
quarterbacking here or I guessit's Tuesday morning in this
case, since that's when we'rerecording I haven't seen the
actual requests that we aretalking about here.
And remember that we aretalking about interrogatories
and requests for admission, notrequests for production, which
would present a different issueon how to search for those given
terms.
But all of these categories ofderogatory language are open to
(07:18):
interpretation and we all knowthat people don't have to use
specific words to discriminateas a woman.
I can name countless times thatI've been discriminated against
that were not as overt asoutright telling me I don't get
a case or a job because I'm awoman, or my opinion isn't
valued because I'm a woman.
It just happens.
We all know it.
Even guys who've been in theroom have seen it where it's
(07:40):
just overlooked.
So words themselves aren't theissue, but here, for particular
purposes of finding evidence,they are necessary and in
answering those interrogatoriesand requests for admit, it's
important to consider them.
So in this instance, althoughdiscrimination can be subtle and
hard to articulate all of thetime, the plaintiff here is
(08:04):
looking at specific requests indiscovery that it has to respond
to and it did not make anyargument as to why the terms
that the defendants had usedwere vague.
Because the plaintiff didn'tmeet her burden here, she lost
her motion and is now compelledto answer the discovery.
And this is the really trickypart of discovery strategy.
(08:27):
What is the point of yourmotion?
What do you hope to achieve andwhat if you lose?
All three of those things haveto be considered.
But you really need to considerwhether you can meet your
burden on a motion to compel andif you can't don't make the
motion, unnecessary motionpractice drives up the cost of
litigation.
It closes the courthouse doorsto those who can't don't make
(08:47):
the motion.
Unnecessary motion practicedrives up the cost of litigation
.
It closes the courthouse doorsto those who can't afford it.
Know what your burden is andwhether you can meet it before
you put pen to paper or fingersto keyboard to draft it.
Now let's move on to theplaintiff's motion to compel.
Another one we looked at wasthe defendant's motion to compel
.
Plaintiff Plaintiff moved tocompel on multiple requests for
(09:09):
production and one interrogatory, and the court granted the
motion in part.
Plaintiff's first argument wasthat the defendant should be
compelled to produce documentsregarding her supervisor's
performance.
Defendant had already produceddocuments from their files
regarding the plaintiff'sperformance from those
supervisors, as well as anycomplaints of discrimination
from other employees against thesupervisors.
(09:30):
But the court here drew theline at requiring performance
documents on the supervisors,finding that they were not
relevant to plaintiff's claims,and raised privacy concerns of
the non-party employees who maybe included in those documents.
Now, privacy considerations aresomething that we see come up
time and time again in dealingwith ESI, and the reason we do
(09:52):
is because we have to filter andsearch through multiple sources
of ESI and vast quantities ofdata to get to what we need.
As counsel, you have to bethinking about the privacy
implications in your motions andaddressing them.
One option here would have beento provide for the redaction of
names or even a protectiveorder, which has been sufficient
to appease other judges.
(10:13):
But when you don't raise it,you leave it to the court and
you may end up with whatplaintiff got here a ruling
denying the information onprivacy grounds.
Now, to be clear, the courtfound that the information
wasn't relevant, so the privacyissue was secondary.
But my point is that you haveto anticipate what the court
will look at and argue it, orelse you are leaving it to
(10:34):
chance.
While discovery decisions arerarely appealable, making a
record is always necessary.
Put it in the briefs, make theargument.
The next issue in plaintiff'smotion was that plaintiffs
sought communications betweenother employees regarding
allegations that regardingplaintiff's allegations that
(10:56):
were housed in the defendant'sslack instance, and this is
really key.
So I want you to pay attention.
Defendants argued that they didnot have possession, custody or
control over the documents fromSlack because their Slack
license never included messageretrieval or export and the
company did not otherwise storeor archive Slack messages
(11:20):
outside of Slack.
Now, just to be clear, they aresaying that they did not have
the ability to export messagesfrom Slack and therefore that
the data, while potentiallyrelevant, is not in their
possession, custody or controlas required by Rule 34 of the
Federal Rules of Civil Procedure.
And the court agreed withabsolutely zero discussion in
(11:42):
his opinion.
Judge Godby held that quote.
Because the Slack documents arenot in defendant's possession,
custody or control, the courtdenies Vaughn's motion to compel
the Slack documents.
Close quote.
That's it, no discussion.
Now for context, let's discussfor just a minute how Slack
works.
Slack has four different plantypes free, pro, business and
(12:03):
enterprise.
That's as of this recording,only the business and enterprise
plans allow for data exports ofmessages for e-discovery.
So if you don't have either oneof those plans, you cannot
export from Slack of your ownchoosing.
So going back to the decisionhere from Judge Godby, because
the defendant did not have aplan that allowed them to export
(12:23):
the data, the court found thatthey did not have possession,
custody or control of that data.
Under this decision in front ofJudge Godbey, if you have a
client using Slack but who is ona plan that does not allow
exports?
You do not have to produceSlack data.
Now I'm just going to pause herefor a second to let that sink
(12:43):
in, and while I understand thecourt's reasoning here, it can
have dramatic consequences onthe availability of evidence in
litigation and I think itrequires more analysis or any
analysis than the court gave ithere.
Effectively, plaintiff here isbarred from getting evidence
that might be key and might berelevant to her case because the
(13:07):
company isn't on a plan toallow exports from a source of
ESI.
It freely provides to itsemployees to create
communications.
That does not seem to be inkeeping with the theme of the
federal rules of civil procedure.
Now I understand the ruling.
I'm just not sure the precedentthat it sets is a good one.
It speaks to whether or not weneed to reconsider the rules in
(13:28):
this area.
We have to think about howinformation is stored, that
essentially, this ruling isallowing the defendant to
shelter information by virtue ofthe fact that they're just on a
plan that doesn't require themto provide it.
Now the flip side of that isthat if we start requiring
companies to pay for E5 licensesin Microsoft or business or
(13:49):
enterprise plans on Slack, thenwe're increasing their
obligations that don't currentlyexist under the federal rules
of civil procedure.
That's the flip side of theargument.
But if the goal of the federalrules of civil procedure is to
make sure that parties get theinformation that's relevant to
their case, this ruling is aroadblock to that.
This issue alone emphasizes whyit is incredibly important for
(14:13):
counsel to know and understandhow each source of ESI that is
implicated in a matter works.
Slack has its plans and theirfunctionality listed directly on
the website and we'll add thelink.
One quick Google search forSlack plans brings you right to
it.
In this case, when plaintiffknows that there are likely
relevant slack messages, counselneeds to address that during a
(14:34):
meet and confer and proposealternatives to the other side.
When their plan does not allowfor exports, they needed to
brief the issue of possession,custody or control if that's
what they knew the other sidewas going to assert.
Now there are solutions, butyou have to think outside the
box of just asking for what youwant and relying on the other
side to give it to you.
(14:55):
You need to be proactive inyour discovery strategy.
Here the plaintiff's counselneeded to figure out a solution
to the export issue and proposeit.
Maybe she bears the cost for anupgrade to export.
Counsel could have contactedone of the partners listed right
on Slack's website to get helpand maybe, if they did but
there's nothing in and maybethey did, I'm sorry but there's
(15:16):
nothing in the decision about it, just an argument by defendants
about the lack of export accessand an agreement by the court
that that means they don't havepossession, custody or control.
That is an incredibly missedopportunity for the plaintiff
here.
The court also deniedplaintiff's motion for documents
relating to her complaints ofdiscrimination or retaliation
(15:36):
and documents relating toinvestigations of such
complaints, because they wereall housed in Slack.
Another missed opportunity, allright.
Next, plaintiff soughtcommunications from Chatter from
all other employees.
Chatter, if you don't know thatone, is an instant messaging
(15:56):
tool inside Salesforce Classicthat allows a user to send a
question to another personprivately or communicate with a
set of people.
Messages in Chatter also notifypeople when a file is shared
with them.
However, unlike Slack messages,in this case the plaintiff
provided a declaration in theform of a former sales employee
(16:17):
from the defendant in which hestated that one of the sales
executives had discriminatedagainst Vaughn by making bigoted
, sexist and homophobic commentsabout her.
The court found that thatdeclaration was sufficient
evidence to find that statementsmade by the sales executive
could be relevant and orderedproduction.
Now there's no argument thatthere's no export available from
(16:40):
chatter here.
So either there is or it justdidn't come up and the parties
didn't argue it.
Now do you see the differencebetween how counsel handled
these two issues?
With regard to chatter, theyhad evidence of relevance.
You need to meet your burden toshow relevance for every source
of ESI.
They couldn't do that on Slack,so it's like the PCC issue was
(17:02):
secondary, but it's still outthere.
Decision is a really goodexample of the complexity of
discovery strategy around ESIand how hard it is for counsel
to know what they need to knowall the time.
The effort required to provideESI here necessitates that the
relevant standard and the otherrequirements in the federal
rules be met before a court willgive you any electronic
(17:26):
evidence as data.
Know your burden and meet it.
Anticipate the argumentsagainst your position and
address them.
Privacy can be addressed byredaction or a protective order.
Losing discovery motions cancost you the case if you don't
have the evidence you need toprove your claims because you
didn't know about the differentslack plans.
(17:47):
Get to know the sources of ESIthat are implicated in your
matter work and keep checkingback, because they change often.
All right, that's our case ofthe week.
Be sure to follow the Meet andConfer podcast on your favorite
platform and we'll see you nexttime.
Have a great week, thank you.
Thank you, hi, and welcome to our Case of the
Week segment on our Meet andConfer podcast, ediscovery and
Information Law, as well as theCEO and founder of Minerva 26,
where we take the insights fromour practice at ESI Attorneys
and provide a strategic commandcenter for litigators to
leverage the power of ESI.
Thanks so much for joining metoday.
Our case of the week segment isbrought to you by Minerva 26 in
(00:59):
partnership with ASEDS and theamazing Deja Miller, who has
helped me this morning because Isnap food things.
Each week on this segment, Ichoose a recent decision on
e-discovery issues and highlightthe practical considerations
for counsel to apply in theirpractice and for other legal
professionals to know about.
In our case this week, theparties are before the court on
(01:21):
a fairly routine competingmotions for compel, but the
court's decision offers somereally useful practical lessons
for you to take intoconsideration.
As always, we'll include thelink to the decision and other
materials that we discuss in theshow notes, so feel free to
dive in there to read the actualdecision.
All right, this week's casecomes to us from Yvonne versus
(01:43):
Solera Holdings.
This is a decision from March12th of 2025 from United States
District Judge David Godbey.
Judge Godbey has 38 decisionsin our Minerva 26 case law
database.
He's experienced at dealingwith ESI related issues in terms
of those decisions and we'regoing to talk through some of
(02:04):
his thinking today.
The issues for this decision,as always, include slack,
possession, custody control,instant messaging, failure to
produce and proportionality.
Now, this motion to Capellarose as part of an employment
discrimination matter in whichboth parties are arguing for the
production of documents as wellas responses to interrogatories
(02:26):
and requests for admission.
While we usually break out thefacts and analysis of each
decision, here on the case ofthe week we're going to change
it up a little bit going forwardand in this particular decision
, judge Godby rolls all thefacts together in ruling on both
motions, so we just kind ofcombined facts and analysis
together.
The first and most importantpart of this decision is right
(02:47):
at the outset, where JudgeGodbey talks about the legal
standard for discovery under thefederal rules of civil
procedure.
This is a section that isalmost always included in every
decision that we see ondiscovery, but Judge Godbey does
a really great job ofarticulating it for you, so I'm
going to lay it out.
If you're drafting a motion tocompel in federal court, this is
(03:09):
the language that you want tofocus on, and it's key because
it focuses on the rules and howthey have been interpreted.
That is your entire goal inmaking a motion to show why the
rules allow you to do what youare asking for.
The case law is a secondaryinterpretation of those rules on
a given set of facts.
Here's that quote, and it's along one, but it's very
(03:32):
important to pay attention to.
Federal Rule of Civil Procedure26 allows parties to obtain
discovery regarding anynon-privileged matter that is
relevant to any party's claim ordefense and proportional to the
needs of the case.
A litigant may request theproduction of documents falling
within the scope of Rule 26Bfrom another party if the
(03:55):
documents are in that party'spossession, custody or control.
A litigant may also serve onanother party a written request
to admit the truth of anymatters within the scope of Rule
26B1 regarding the facts,application of law to the facts
or opinions about either.
Further, a litigant may serveinterrogatories on another party
(04:17):
relating to any matter that maybe inquired into under Rule 26B
inquired into under Rule 26b Toenforce discovery rights.
A party seeking discovery maymove for an order compelling any
answer, designation, productionor inspection.
The Fifth Circuit requires aparty seeking to prevent
discovery to specify why thediscovery is not relevant or
(04:40):
show that it fails theproportionality requirements.
Courts also construe relevancebroadly, as a document need not
by itself prove or disprove aclaim or defense or have a
strong probative force to berelevant.
A district court has widediscretion to supervise
discovery, however, and it maylimit discovery if it would be
(05:04):
unreasonably cumulative, couldbe obtained more easily from a
different source, is notproportional to the needs of the
case, or if the burden orexpense of the proposed
discovery outweighs itspotential benefit.
Close quote Now that's a longone, but it literally lays out
for you, step by step in therules, exactly what your
analysis needs to be on theissues that are raised in this
(05:26):
motion to compel.
In these motions to compel, Ishould say, because we've got
two Now with that standard as abackup.
Judge Godfrey then looked atinitially at the defendant's
motion to compel.
That motion sought to overruleplaintiff's objections to
interrogatories and requests foradmission made to the terms
used by the defendants in theirrequests.
(05:48):
Defendants' interrogatories andrequests for admission included
terms including, quotederogatory language about sexual
orientation, race-baseddiscrimination, including racial
slurs and misogynistic slurs.
Close quote Now, all of thoseterms seem pretty easily
definable and that's exactlywhat the court said in granting
(06:09):
the motion and compelling theplaintiff to respond.
But it's what comes next that Iwant you to pay attention to.
The court said that quote aparty objecting to discovery as
vague and ambiguous has theburden to show such vagueness
and ambiguity and must explainthe specific and particular way
in which a request is vagueclose quote.
And the court found here thatthe plaintiff had not done that.
(06:32):
Now, again on case of the weekand we see this regularly here a
party arguing for emotion hasto meet their burden on what
needs to be shown.
It is a huge waste of clientresources when you don't make
the argument as to why it's hardthat can persuade the court.
Now, accepting, of course, thatI am always Monday morning
(06:55):
quarterbacking here or I guessit's Tuesday morning in this
case, since that's when we'rerecording I haven't seen the
actual requests that we aretalking about here.
And remember that we aretalking about interrogatories
and requests for admission, notrequests for production, which
would present a different issueon how to search for those given
terms.
But all of these categories ofderogatory language are open to
(07:18):
interpretation and we all knowthat people don't have to use
specific words to discriminateas a woman.
I can name countless times thatI've been discriminated against
that were not as overt asoutright telling me I don't get
a case or a job because I'm awoman, or my opinion isn't
valued because I'm a woman.
It just happens.
We all know it.
Even guys who've been in theroom have seen it where it's
(07:40):
just overlooked.
So words themselves aren't theissue, but here, for particular
purposes of finding evidence,they are necessary and in
answering those interrogatoriesand requests for admit, it's
important to consider them.
So in this instance, althoughdiscrimination can be subtle and
hard to articulate all of thetime, the plaintiff here is
(08:04):
looking at specific requests indiscovery that it has to respond
to and it did not make anyargument as to why the terms
that the defendants had usedwere vague.
Because the plaintiff didn'tmeet her burden here, she lost
her motion and is now compelledto answer the discovery.
And this is the really trickypart of discovery strategy.
(08:27):
What is the point of yourmotion?
What do you hope to achieve andwhat if you lose?
All three of those things haveto be considered.
But you really need to considerwhether you can meet your
burden on a motion to compel andif you can't don't make the
motion, unnecessary motionpractice drives up the cost of
litigation.
It closes the courthouse doorsto those who can't don't make
(08:47):
the motion.
Unnecessary motion practicedrives up the cost of litigation
.
It closes the courthouse doorsto those who can't afford it.
Know what your burden is andwhether you can meet it before
you put pen to paper or fingersto keyboard to draft it.
Now let's move on to theplaintiff's motion to compel.
Another one we looked at wasthe defendant's motion to compel
.
Plaintiff Plaintiff moved tocompel on multiple requests for
(09:09):
production and one interrogatory, and the court granted the
motion in part.
Plaintiff's first argument wasthat the defendant should be
compelled to produce documentsregarding her supervisor's
performance.
Defendant had already produceddocuments from their files
regarding the plaintiff'sperformance from those
supervisors, as well as anycomplaints of discrimination
from other employees against thesupervisors.
(09:30):
But the court here drew theline at requiring performance
documents on the supervisors,finding that they were not
relevant to plaintiff's claims,and raised privacy concerns of
the non-party employees who maybe included in those documents.
Now, privacy considerations aresomething that we see come up
time and time again in dealingwith ESI, and the reason we do
(09:52):
is because we have to filter andsearch through multiple sources
of ESI and vast quantities ofdata to get to what we need.
As counsel, you have to bethinking about the privacy
implications in your motions andaddressing them.
One option here would have beento provide for the redaction of
names or even a protectiveorder, which has been sufficient
to appease other judges.
(10:13):
But when you don't raise it,you leave it to the court and
you may end up with whatplaintiff got here a ruling
denying the information onprivacy grounds.
Now, to be clear, the courtfound that the information
wasn't relevant, so the privacyissue was secondary.
But my point is that you haveto anticipate what the court
will look at and argue it, orelse you are leaving it to
(10:34):
chance.
While discovery decisions arerarely appealable, making a
record is always necessary.
Put it in the briefs, make theargument.
The next issue in plaintiff'smotion was that plaintiffs
sought communications betweenother employees regarding
allegations that regardingplaintiff's allegations that
(10:56):
were housed in the defendant'sslack instance, and this is
really key.
So I want you to pay attention.
Defendants argued that they didnot have possession, custody or
control over the documents fromSlack because their Slack
license never included messageretrieval or export and the
company did not otherwise storeor archive Slack messages
(11:20):
outside of Slack.
Now, just to be clear, they aresaying that they did not have
the ability to export messagesfrom Slack and therefore that
the data, while potentiallyrelevant, is not in their
possession, custody or controlas required by Rule 34 of the
Federal Rules of Civil Procedure.
And the court agreed withabsolutely zero discussion in
(11:42):
his opinion.
Judge Godby held that quote.
Because the Slack documents arenot in defendant's possession,
custody or control, the courtdenies Vaughn's motion to compel
the Slack documents.
Close quote.
That's it, no discussion.
Now for context, let's discussfor just a minute how Slack
works.
Slack has four different plantypes free, pro, business and
(12:03):
enterprise.
That's as of this recording,only the business and enterprise
plans allow for data exports ofmessages for e-discovery.
So if you don't have either oneof those plans, you cannot
export from Slack of your ownchoosing.
So going back to the decisionhere from Judge Godby, because
the defendant did not have aplan that allowed them to export
(12:23):
the data, the court found thatthey did not have possession,
custody or control of that data.
Under this decision in front ofJudge Godbey, if you have a
client using Slack but who is ona plan that does not allow
exports?
You do not have to produceSlack data.
Now I'm just going to pause herefor a second to let that sink
(12:43):
in, and while I understand thecourt's reasoning here, it can
have dramatic consequences onthe availability of evidence in
litigation and I think itrequires more analysis or any
analysis than the court gave ithere.
Effectively, plaintiff here isbarred from getting evidence
that might be key and might berelevant to her case because the
(13:07):
company isn't on a plan toallow exports from a source of
ESI.
It freely provides to itsemployees to create
communications.
That does not seem to be inkeeping with the theme of the
federal rules of civil procedure.
Now I understand the ruling.
I'm just not sure the precedentthat it sets is a good one.
It speaks to whether or not weneed to reconsider the rules in
(13:28):
this area.
We have to think about howinformation is stored, that
essentially, this ruling isallowing the defendant to
shelter information by virtue ofthe fact that they're just on a
plan that doesn't require themto provide it.
Now the flip side of that isthat if we start requiring
companies to pay for E5 licensesin Microsoft or business or
(13:49):
enterprise plans on Slack, thenwe're increasing their
obligations that don't currentlyexist under the federal rules
of civil procedure.
That's the flip side of theargument.
But if the goal of the federalrules of civil procedure is to
make sure that parties get theinformation that's relevant to
their case, this ruling is aroadblock to that.
This issue alone emphasizes whyit is incredibly important for
(14:13):
counsel to know and understandhow each source of ESI that is
implicated in a matter works.
Slack has its plans and theirfunctionality listed directly on
the website and we'll add thelink.
One quick Google search forSlack plans brings you right to
it.
In this case, when plaintiffknows that there are likely
relevant slack messages, counselneeds to address that during a
(14:34):
meet and confer and proposealternatives to the other side.
When their plan does not allowfor exports, they needed to
brief the issue of possession,custody or control if that's
what they knew the other sidewas going to assert.
Now there are solutions, butyou have to think outside the
box of just asking for what youwant and relying on the other
side to give it to you.
(14:55):
You need to be proactive inyour discovery strategy.
Here the plaintiff's counselneeded to figure out a solution
to the export issue and proposeit.
Maybe she bears the cost for anupgrade to export.
Counsel could have contactedone of the partners listed right
on Slack's website to get helpand maybe, if they did but
there's nothing in and maybethey did, I'm sorry but there's
(15:16):
nothing in the decision about it, just an argument by defendants
about the lack of export accessand an agreement by the court
that that means they don't havepossession, custody or control.
That is an incredibly missedopportunity for the plaintiff
here.
The court also deniedplaintiff's motion for documents
relating to her complaints ofdiscrimination or retaliation
(15:36):
and documents relating toinvestigations of such
complaints, because they wereall housed in Slack.
Another missed opportunity, allright.
Next, plaintiff soughtcommunications from Chatter from
all other employees.
Chatter, if you don't know thatone, is an instant messaging
(15:56):
tool inside Salesforce Classicthat allows a user to send a
question to another personprivately or communicate with a
set of people.
Messages in Chatter also notifypeople when a file is shared
with them.
However, unlike Slack messages,in this case the plaintiff
provided a declaration in theform of a former sales employee
(16:17):
from the defendant in which hestated that one of the sales
executives had discriminatedagainst Vaughn by making bigoted
, sexist and homophobic commentsabout her.
The court found that thatdeclaration was sufficient
evidence to find that statementsmade by the sales executive
could be relevant and orderedproduction.
Now there's no argument thatthere's no export available from
(16:40):
chatter here.
So either there is or it justdidn't come up and the parties
didn't argue it.
Now do you see the differencebetween how counsel handled
these two issues?
With regard to chatter, theyhad evidence of relevance.
You need to meet your burden toshow relevance for every source
of ESI.
They couldn't do that on Slack,so it's like the PCC issue was
(17:02):
secondary, but it's still outthere.
Decision is a really goodexample of the complexity of
discovery strategy around ESIand how hard it is for counsel
to know what they need to knowall the time.
The effort required to provideESI here necessitates that the
relevant standard and the otherrequirements in the federal
rules be met before a court willgive you any electronic
(17:26):
evidence as data.
Know your burden and meet it.
Anticipate the argumentsagainst your position and
address them.
Privacy can be addressed byredaction or a protective order.
Losing discovery motions cancost you the case if you don't
have the evidence you need toprove your claims because you
didn't know about the differentslack plans.
(17:47):
Get to know the sources of ESIthat are implicated in your
matter work and keep checkingback, because they change often.
All right, that's our case ofthe week.
Be sure to follow the Meet andConfer podcast on your favorite
platform and we'll see you nexttime.
Have a great week, thank you.
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