Gilded Age Electronic Discovery

Attorneys have been using technology to send business communications for far longer than computers and emails have been around. The Martindale Directory of 1900 contains a record of how lawyers of the Gilded Age used the technology of the day to efficiently send messages about business transactions. At the beginning of the directory is a list of cipher codes used in telegrams. Presumably, these codes allowed lawyers and their clients to communicate with a measure of confidentiality and for a cheaper per letter/word cost.

If a client sent a telegram to an attorney using the word, 'GYMNAST' the message would be, 'Have we power to arrest the party named below on the facts as stated to you?' The code HEDONIC was a direction by an attorney meaning, "Send at once full name of each member of your firm, or if you are corporation, give name of State in which you were incorporated. This we need in matter of your claim against . . .". '

M.D. Tenn. Rules on Spoliation Motions

On Friday, Judge Waverly D. Crenshaw, Jr. issued a decision, EPAC Techs. v. Harpercollins Christian Publ., No. 3:12-cv-00463, 2019 U.S. Dist. LEXIS 1816 (M.D. Tenn. Jan. 4, 2019), ruling on several motions in limine for a trial scheduled to begin this coming Wednesday.

Among these were the Defendant's motion in limine to exclude evidence about his alleged spoliation. He argued that the Plaintiff had mischaracterized the Court and the Special Master's rulings on spoliation and was likely to do so again in front of the jury. The Court determined that the Defendant negligently deposed of relevant books after its duty to preserve arose. Judge Crenshaw ordered a curative jury instruction that the Defendant breached its duty to preserve and that the books could support the Plaintiff's claims. A curative jury instruction of this nature was also ordered for warehouse data and emails that were lost due to the Defendant's negligence. The jury was to take into consideration that the lost ESI would have shown whether or not books were returned, whether orders were filled on time and correctly, and where the books were shipped from.

The Court also ruled on Defendant's motion that EPAC committed spoliation. The motions against EPAC allege that it allowed electronic production data to be lost when it was transferred to third party servers; it lost emails which would show that its platform could fulfill orders for the Defendant; and that it failed to produce financial statements. The Defendant said that it did not create financial statements in the ordinary course of business.

The Court denied the first motion because the Defendant did not show that the production data could not be obtained from other sources, and determined that no Rule 37(e) sanction was warranted. Judge Crenshaw did not find that the identification of four relevant emails that had not been produced supported a finding of spoliation. He also noted that the Defendant made no showing of intent necessary for an adverse inference instruction. The final motion for sanctions was also denied. "To the extent Thomas Nelson questions EPAC's financial practices or the provenance of these data, it may explore those topics and challenge EPAC's proof of damages at trial. A Rule 37(e) sanction of excluding all proof of lost profit damages, however, is not warranted on this record." Id. at *58.

Slack

Slack is a collaboration tool introduced in 2013, which has become widely adopted in the business world. Its purpose is to replace email messages sent between one or more recipients with message boards or chatrooms devoted to a particular subject. Participants can log into Slack and review all of the messages and documents relevant to a project. Messages can be read by anyone invited into a group, but private channels can also be established. Slack has reported that in 2018 more than 8 million users work its platform each day.

There has been a tendency for organizations to share Slack boards with outside parties and hence utilize the platform as a form of social media, in a closed group. As noted on the Relativity blog, its professionals send more Slack messages than they do emails.

Slack's standard export tool will only export public messages. It generates a JSON file for each day.

Slack stands for 'Searchable Log of All Conversation and Knowledge'.