In our last post, we discussed five considerations and four best practices for discovery of data from chat/collaboration apps. Case law precedent is instructive as to how to conduct chat/collaboration apps discovery.
Court rulings regarding proportionality and authentication of chat/collaboration data have illustrated that courts are treating this evidence according to the same standards by which they treat more traditional evidence, like email. Judicial precedent imposing sanctions shows that failure to adhere to your duty to preserve chat/collaboration data will often result in severe – even terminating – sanctions for intent to deprive that evidence.
With that in mind, here are ten recent case law rulings involving chat/collaboration apps.
Disputes involving authentication of evidence are more frequent as the variety of evidence types has grown considerably. Here is recent case law ruling involving authentication of chat messages:
State v. Jesenya O.: The Supreme Court of New Mexico, considering an appeal relating to the authentication of social media evidence, found that the State’s authentication showing was sufficient under New Mexico Rule 11-901 to support a finding that, more likely than not, the Facebook Messenger account used to send the messages belonged to Jesenya O. (Child) and that Child was the author of the messages, so the Court reversed the Court of Appeals and reinstated Child’s delinquency adjudications.
Proportionality disputes are also on the rise generally, and that extends to the proportionality of evidence from chat/collaboration apps. Here are two cases involving proportionality of Slack data:
Twitter, Inc. v. Musk: Here, the Court resolved the dispute between Twitter and Elon Musk regarding the number of custodians for which Twitter needed to produce Slack messages by ordering Twitter to produce Slack messages from two additional custodians in addition to the six they originally proposed, but not the 42 custodians sought by the defendants.
Benebone v. Pet Qwerks, et al.: The Court granted the defendants’ motion to compel production of Slack communications responsive to their document requests, finding 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.”
When it comes to sanctions for spoliation of chat and collaboration data, courts have made it clear that there will be consequences when parties fail to adhere to their duty to preserve this data. Here are seven cases involving sanctions for spoliation of chat/collaboration data:
Ace Am. Ins. Co. v. First Call Envtl., LLC: Here, the Court granted the plaintiff’s motion for adverse inference sanctions due to the defendant’s spoliation of Basecamp documents that detailed safety information.
Drips Holdings, LLC v. Teledrip LLC: The District Judge adopted the Report and Recommendation (“R&R”) of the Magistrate Judge for the defendants to be sanctioned for changing their Slack retention policy and even increased the recommended sanction from a permissive adverse-inference instruction to a mandatory adverse-inference instruction sanction.
Fast v. GoDaddy.com LLC: Here, the Court issued several sanctions for plaintiff’s spoliation of, and failure to produce, several types of evidence in the case (including Facebook Messenger and Telegram messages), and issued adverse inference sanctions, costs, fees, and other sanctions.
Fed. Trade Comm’n v. Noland: The Court, citing the individual defendants’ “deeply troubling” “systematic efforts to conceal and destroy evidence”, granted the FTC’s motion for spoliation sanctions over the defendants’ use of ephemeral messaging app Signal and encrypted email platform ProtonMail upon learning of the FTC’s investigation, awarding an adverse inference instruction for the defendants’ intent to deprive the FTC of that evidence.
Doe v. Purdue, et al.: Here, the Court granted the defendants’ motion for sanctions but rejected defendants’ contention that deletion amounted to intent to deprive, issuing lesser sanctions to the plaintiff, including paying defendant’s attorneys’ fees.
WeRide Corp. v. Huang et al.: The Court granted the plaintiffs’ motion for terminating sanctions through FRCP Rules 37(b) and 37(e) against defendants Wang, Huang, and AllRide for the intentional spoliation of several ESI sources, as well as beginning to use the ephemeral messaging app DingTalk even after the preliminary injunction was issued.
Red Wolf Energy Trading, LLC v. BIA Capital Mgmt., LLC: Here, the Court granted the plaintiff’s Second Motion for Sanctions and awarded a default judgment sanction against the defendants for “repeated” discovery misconduct, including failing to produce a smoking gun Slack exchange.
Given the ubiquity of chat and collaboration apps in the workplace today, it’s not surprising that these cases illustrate the expectations of courts to preserve and produce chat and collaboration app data in the same manner as other sources of ESI. It’s important to have a plan for discovery of your chat and collaboration app data; otherwise, your case could wind up on this list in the future!
In our final post in this series, we will look at the challenge that modern communications and multi-channel conversations impose on eDiscovery workflows.
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