Meet and Confer with Kelly Twigger

COTW: Analyzing a Shocking Court Decision Blocking Slack Discovery

• Kelly Twigger

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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.

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Kelly Twigger:

Thank you, hi, and welcome to our Case of the Week segment on our Meet and Confer podcast, ediscovery and Information Law, as well as the CEO and founder of Minerva 26, where we take the insights from our practice at ESI Attorneys and provide a strategic command center for litigators to leverage the power of ESI. Thanks so much for joining me today. Our case of the week segment is brought to you by Minerva 26 in partnership with ASEDS and the amazing Deja Miller, who has helped me this morning because I snap food things. Each week on this segment, I choose a recent decision on e-discovery issues and highlight the practical considerations for counsel to apply in their practice and for other legal professionals to know about. In our case this week, the parties are before the court on a fairly routine competing motions for compel, but the court's decision offers some really useful practical lessons for you to take into consideration. As always, we'll include the link to the decision and other materials that we discuss in the show notes, so feel free to dive in there to read the actual decision.

Kelly Twigger:

All right, this week's case comes to us from Yvonne versus Solera Holdings. This is a decision from March 12th of 2025 from United States District Judge David Godbey. Judge Godbey has 38 decisions in our Minerva 26 case law database. He's experienced at dealing with ESI related issues in terms of those decisions and we're going to talk through some of 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 Capella rose as part of an employment discrimination matter in which both parties are arguing for the production of documents as well as responses to interrogatories and requests for admission. While we usually break out the facts and analysis of each decision, here on the case of the week we're going to change it up a little bit going forward and in this particular decision, judge Godby rolls all the facts together in ruling on both motions, so we just kind of combined facts and analysis together.

Kelly Twigger:

The first and most important part of this decision is right at the outset, where Judge Godbey talks about the legal standard for discovery under the federal rules of civil procedure. This is a section that is almost always included in every decision that we see on discovery, but Judge Godbey does a really great job of articulating it for you, so I'm going to lay it out. If you're drafting a motion to compel in federal court, this is the language that you want to focus on, and it's key because it focuses on the rules and how they have been interpreted. That is your entire goal in making a motion to show why the rules allow you to do what you are asking for. The case law is a secondary interpretation of those rules on a given set of facts. Here's that quote, and it's a long one, but it's very important to pay attention to.

Kelly Twigger:

Federal Rule of Civil Procedure 26 allows parties to obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. A litigant may request the production of documents falling within the scope of Rule 26B from another party if the documents are in that party's possession, custody or control. A litigant may also serve on another party a written request to admit the truth of any matters within the scope of Rule 26B1 regarding the facts, application of law to the facts or opinions about either. Further, a litigant may serve interrogatories on another party relating to any matter that may be inquired into under Rule 26B inquired into under Rule 26b To enforce discovery rights. A party seeking discovery may move for an order compelling any answer, designation, production or inspection. The Fifth Circuit requires a party seeking to prevent discovery to specify why the discovery is not relevant or show that it fails the proportionality requirements. Courts also construe relevance broadly, as a document need not by itself prove or disprove a claim or defense or have a strong probative force to be relevant. A district court has wide discretion to supervise discovery, however, and it may limit discovery if it would be unreasonably cumulative, could be obtained more easily from a different source, is not proportional to the needs of the case, or if the burden or expense of the proposed discovery outweighs its potential benefit. Close quote Now that's a long one, but it literally lays out for you, step by step in the rules, exactly what your analysis needs to be on the issues that are raised in this motion to compel.

Kelly Twigger:

In these motions to compel, I should say, because we've got two Now with that standard as a backup. Judge Godfrey then looked at initially at the defendant's motion to compel. That motion sought to overrule plaintiff's objections to interrogatories and requests for admission made to the terms used by the defendants in their requests. Defendants' interrogatories and requests for admission included terms including, quote derogatory language about sexual orientation, race-based discrimination, including racial slurs and misogynistic slurs. Close quote Now, all of those terms seem pretty easily definable and that's exactly what the court said in granting the motion and compelling the plaintiff to respond.

Kelly Twigger:

But it's what comes next that I want you to pay attention to. The court said that quote a party objecting to discovery as vague and ambiguous has the burden to show such vagueness and ambiguity and must explain the specific and particular way in which a request is vague close quote. And the court found here that the plaintiff had not done that. Now, again on case of the week and we see this regularly here a party arguing for emotion has to meet their burden on what needs to be shown. It is a huge waste of client resources when you don't make the argument as to why it's hard that can persuade the court.

Kelly Twigger:

Now, accepting, of course, that I am always Monday morning quarterbacking here or I guess it's Tuesday morning in this case, since that's when we're recording I haven't seen the actual requests that we are talking about here. And remember that we are talking about interrogatories and requests for admission, not requests for production, which would present a different issue on how to search for those given terms. But all of these categories of derogatory language are open to interpretation and we all know that people don't have to use specific words to discriminate as a woman. I can name countless times that I've been discriminated against that were not as overt as outright telling me I don't get a case or a job because I'm a woman, or my opinion isn't valued because I'm a woman. It just happens. We all know it. Even guys who've been in the room have seen it where it's just overlooked. So words themselves aren't the issue, but here, for particular purposes of finding evidence, they are necessary and in answering those interrogatories and requests for admit, it's important to consider them.

Kelly Twigger:

So in this instance, although discrimination can be subtle and hard to articulate all of the time, the plaintiff here is looking at specific requests in discovery that it has to respond to and it did not make any argument as to why the terms that the defendants had used were vague. Because the plaintiff didn't meet her burden here, she lost her motion and is now compelled to answer the discovery. And this is the really tricky part of discovery strategy. What is the point of your motion? What do you hope to achieve and what if you lose? All three of those things have to be considered. But you really need to consider whether you can meet your burden on a motion to compel and if you can't don't make the motion, unnecessary motion practice drives up the cost of litigation. It closes the courthouse doors to those who can't don't make the motion. Unnecessary motion practice drives up the cost of litigation. It closes the courthouse doors to those who can't afford it. Know what your burden is and whether you can meet it before you put pen to paper or fingers to keyboard to draft it.

Kelly Twigger:

Now let's move on to the plaintiff's motion to compel. Another one we looked at was the defendant's motion to compel. Plaintiff Plaintiff moved to compel on multiple requests for production and one interrogatory, and the court granted the motion in part. Plaintiff's first argument was that the defendant should be compelled to produce documents regarding her supervisor's performance. Defendant had already produced documents from their files regarding the plaintiff's performance from those supervisors, as well as any complaints of discrimination from other employees against the supervisors. But the court here drew the line 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 may be included in those documents.

Kelly Twigger:

Now, privacy considerations are something that we see come up time and time again in dealing with ESI, and the reason we do is because we have to filter and search through multiple sources of ESI and vast quantities of data to get to what we need. As counsel, you have to be thinking about the privacy implications in your motions and addressing them. One option here would have been to provide for the redaction of names or even a protective order, which has been sufficient to appease other judges. But when you don't raise it, you leave it to the court and you may end up with what plaintiff got here a ruling denying the information on privacy grounds. Now, to be clear, the court found that the information wasn't relevant, so the privacy issue was secondary. But my point is that you have to anticipate what the court will look at and argue it, or else you are leaving it to chance. While discovery decisions are rarely appealable, making a record is always necessary. Put it in the briefs, make the argument.

Kelly Twigger:

The next issue in plaintiff's motion was that plaintiffs sought communications between other employees regarding allegations that regarding plaintiff's allegations that were housed in the defendant's slack instance, and this is really key. So I want you to pay attention. Defendants argued that they did not have possession, custody or control over the documents from Slack because their Slack license never included message retrieval or export and the company did not otherwise store or archive Slack messages outside of Slack. Now, just to be clear, they are saying that they did not have the ability to export messages from Slack and therefore that the data, while potentially relevant, is not in their possession, custody or control as required by Rule 34 of the Federal Rules of Civil Procedure. And the court agreed with absolutely zero discussion in his opinion. Judge Godby held that quote. Because the Slack documents are not in defendant's possession, custody or control, the court denies Vaughn's motion to compel the Slack documents. Close quote. That's it, no discussion.

Kelly Twigger:

Now for context, let's discuss for just a minute how Slack works. Slack has four different plan types free, pro, business and enterprise. That's as of this recording, only the business and enterprise plans allow for data exports of messages for e-discovery. So if you don't have either one of those plans, you cannot export from Slack of your own choosing. So going back to the decision here from Judge Godby, because the defendant did not have a plan that allowed them to export the data, the court found that they did not have possession, custody or control of that data. Under this decision in front of Judge Godbey, if you have a client using Slack but who is on a plan that does not allow exports? You do not have to produce Slack data.

Kelly Twigger:

Now I'm just going to pause here for a second to let that sink in, and while I understand the court's reasoning here, it can have dramatic consequences on the availability of evidence in litigation and I think it requires more analysis or any analysis than the court gave it here. Effectively, plaintiff here is barred from getting evidence that might be key and might be relevant to her case because the company isn't on a plan to allow exports from a source of ESI. It freely provides to its employees to create communications. That does not seem to be in keeping with the theme of the federal rules of civil procedure. Now I understand the ruling. I'm just not sure the precedent that it sets is a good one. It speaks to whether or not we need to reconsider the rules in this area. We have to think about how information is stored, that essentially, this ruling is allowing the defendant to shelter information by virtue of the fact that they're just on a plan that doesn't require them to provide it. Now the flip side of that is that if we start requiring companies to pay for E5 licenses in Microsoft or business or enterprise plans on Slack, then we're increasing their obligations that don't currently exist under the federal rules of civil procedure. That's the flip side of the argument. But if the goal of the federal rules of civil procedure is to make sure that parties get the information that's relevant to their case, this ruling is a roadblock to that.

Kelly Twigger:

This issue alone emphasizes why it is incredibly important for counsel to know and understand how each source of ESI that is implicated in a matter works. Slack has its plans and their functionality listed directly on the website and we'll add the link. One quick Google search for Slack plans brings you right to it. In this case, when plaintiff knows that there are likely relevant slack messages, counsel needs to address that during a meet and confer and propose alternatives to the other side. When their plan does not allow for exports, they needed to brief the issue of possession, custody or control if that's what they knew the other side was going to assert. Now there are solutions, but you have to think outside the box of just asking for what you want and relying on the other side to give it to you. You need to be proactive in your discovery strategy. Here the plaintiff's counsel needed to figure out a solution to the export issue and propose it. Maybe she bears the cost for an upgrade to export. Counsel could have contacted one of the partners listed right on Slack's website to get help and maybe, if they did but there's nothing in and maybe they did, I'm sorry but there's nothing in the decision about it, just an argument by defendants about the lack of export access and an agreement by the court that that means they don't have possession, custody or control. That is an incredibly missed opportunity for the plaintiff here. The court also denied plaintiff's motion for documents relating to her complaints of discrimination or retaliation and documents relating to investigations of such complaints, because they were all housed in Slack. Another missed opportunity, all right.

Kelly Twigger:

Next, plaintiff sought communications from Chatter from all other employees. Chatter, if you don't know that one, is an instant messaging tool inside Salesforce Classic that allows a user to send a question to another person privately or communicate with a set of people. Messages in Chatter also notify people when a file is shared with them. However, unlike Slack messages, in this case the plaintiff provided a declaration in the form of a former sales employee from the defendant in which he stated that one of the sales executives had discriminated against Vaughn by making bigoted, sexist and homophobic comments about her. The court found that that declaration was sufficient evidence to find that statements made by the sales executive could be relevant and ordered production. Now there's no argument that there's no export available from chatter here. So either there is or it just didn't come up and the parties didn't argue it.

Kelly Twigger:

Now do you see the difference between how counsel handled these two issues? With regard to chatter, they had evidence of relevance. You need to meet your burden to show relevance for every source of ESI. They couldn't do that on Slack, so it's like the PCC issue was secondary, but it's still out there.

Kelly Twigger:

Decision is a really good example of the complexity of discovery strategy around ESI and how hard it is for counsel to know what they need to know all the time. The effort required to provide ESI here necessitates that the relevant standard and the other requirements in the federal rules be met before a court will give you any electronic evidence as data. Know your burden and meet it. Anticipate the arguments against your position and address them. Privacy can be addressed by redaction or a protective order. Losing discovery motions can cost you the case if you don't have the evidence you need to prove your claims because you didn't know about the different slack plans. Get to know the sources of ESI that are implicated in your matter work and keep checking back, because they change often. All right, that's our case of the week. Be sure to follow the Meet and Confer podcast on your favorite platform and we'll see you next time. Have a great week, thank you.

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