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'.

Guide to E-Discovery in the 50 States

The National Center for State Courts has published a guide detailing how rules governing electronic discovery are applied in the 50 states. Best Practices for Courts and Parties Regarding Electronic Discovery in State Courts includes sections on the areas in which state courts generally agree on the preservation and production of ESI, and a section which lists key electronic discovery rules in each state.

There is a consensus among state courts that both parties making claims and those defending them have an obligation to make reasonable efforts to preserve data needed for foreseeable litigation. A litigation hold must be issued to relevant custodians. Parties may be obligated to provide data they have access to in the cloud. Parties are not obligated to retain data that is overwritten by the routine operation of information systems. Under the 2015 amendments to the Federal Rules of Civil Procedure, the steps taken to preserve ESI must be proportional to the needs of the case. Punitive measures should only be imposed for the failure to preserve ESI when there is culpable intent.

Parties need only produce ESI which is relevant and proportional to the needs of a case. When making requests and objections to those requests, parties have an obligation to cooperate. Single PDFs can be an acceptable format for small productions. A party receiving inadvertently produced privileged material must notify the producing party of their discovery of this information. Federal Rule of Evidence 502 addresses such inadvertent production of privileged documents. Some courts have required transparency with respect to the black box operations used in technology assisted review. A search protocol can help prevent disputes between the parties.

Arizona - a pending petition to amend the Arizona Rules of Civil Procedure does not include changes regarding proportionality adopted in 2015 amendments to the FRCP.

California - an Electronic Discovery Act limits discovery on the basis of both proportionality and accessibility.

Colorado - has not adopted the amended version of FRCP 37(e) or limited the production of inaccessible ESI as specified by FRCP 26(b)(2)(b).

Florida - has not resolved whether or not there is a pre-litigation duty to preserve.

Illinois - proportionality considerations were added under Illinois Civil Rule 201(c)(3).

Massachusetts - did not adopt a proportionality standard after the December 2015 FRCP amendments, but instead took a wait and see approach.

New Jersey - Rule 4:18(c) requires certification that a good faith search was made for ESI, and imposes a duty to supplement.

Pennsylvania - the Pennsylvania Supreme Court's Rules of Civil Procedure prohibit under Rule 4011 bad faith discovery or discovery which causes unreasonable annoyance, embarrassment, oppression, burden or expense.

Texas - in Brookshire Bros. v. Aldridge the Supreme Court of Texas ruled that evidence of spoliation cannot always be submitted to juries.

Wickr

Inquire if your clients use Wickr, an instant messaging app often used in business to send secure messages. Wickr employs end-to-end encryption so that messages are encrypted even when they are stored. It includes a 'seff-destruct' option which will automatically erase messages shortly after they are sent, so it can function like SnapChat. Wickr is a high end product - it can be implemented for 100 users at a cost of $50,000. It's a good alternative to collaboration tools like Slack that lack an encryption feature.

Wickr's web site notes an important exception to the requirement of the GDPR that data security breaches be reported immediately. Notice is not required under Article 33 if encryption has rendered data unintelligible to unauthorized users. Another good reason to send business related messages with encryption.