See what I did there? 😉
In Benebone v. Pet Qwerks, et al., No. 8:20-cv-00850-AB-AFMx (C.D. Cal. Feb. 18, 2021), California Magistrate Judge Alexander F. MacKinnon, in granting the defendants’ motion to compel production of Slack communications responsive to their document requests, found 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.”
In this case regarding claims of patent infringement, trade dress infringement and unfair competition, the defendants sought to include the plaintiff’s Slack messages in the parties’ Stipulated ESI Order, and the plaintiff took the position that Slack messages should be excluded from discovery. During a telephonic discovery conference in November 2020 to discuss the matter, the Court concluded the plaintiff’s Slack messages were relevant, but it lacked sufficient information to determine whether Slack discovery would be proportional to the needs of the case. Accordingly, the Court ordered the parties to meet and confer further regarding possible Slack production after the plaintiff had obtained additional information about its Slack account and what would be required to search and produce responsive Slack messages.
As part of the meet and confer process, the plaintiff informed Defendants that its Slack account contained approximately 30,000 messages and estimated that it would cost $110,000 to $255,000 to extract, process, and review those messages. Based on these cost estimates, the plaintiff maintained that searching and producing documents from Slack would be an undue burden and would not be proportional to the needs of the case. The defendants disagreed and filed the motion to compel the plaintiff to produce its responsive Slack messages.
In response to the plaintiff’s estimate, the defendants submitted a declaration from their expert from an eDiscovery vendor (Michael Gutierrez, Director of Forensic Services at Xact Data Discovery) where he indicated that software vendors had developed to streamline review and production of Slack messages and explained how extracting, processing, and reviewing Slack messages could take place using currently available software tools. He also provided a cost estimate for doing so in this case, indicating that his company offered contract review attorneys at a rate of $40 per hour to conduct the first level review of Slack messages, resulting in a cost estimate of $22,000 for the plaintiff to find and produce its responsive Slack messages. The plaintiff stood by its prior estimate but did not provide a declaration from an eDiscovery expert to support its conclusions or respond to the evidence provided by the defendants’ expert.
In assessing the defendants’ motion, Judge MacKinnon stated: “Here, because Benebone uses Slack as part of its internal business communications, there is no real dispute that Benebone’s Slack messages are likely to contain relevant information. The crucial issue is whether requiring Benebone to search for and produce responsive Slack messages would be unduly burdensome and disproportional to the needs of this case. In this regard, the Court relies on Mr. Gutierrez’s testimony regarding the estimated cost and level of effort necessary for producing the Slack messages. Mr. Gutierrez was a knowledgeable and credible witness on this subject, and his declarations and testimony at the hearing were not rebutted by a Benebone witness.”
Continuing, Judge MacKinnon observed that the defendants’ expert testified that “third-party tools have been developed over the past several years for collecting and reviewing Slack messages and that review and production of Slack messages has become comparable to email document production through use of these tools.”
Judge MacKinnon also stated: “Mr. Gutierrez’s declarations and testimony indicate that it is possible to conduct first level review of the pertinent Slack messages via contract attorneys for far less than Benebone’s estimated blended rate of $400 per hour. Mr. Gutierrez testified that contract reviewers are available who are licensed attorneys at a rate as low as $40 per hour for first-level review.” While finding that “Mr. Gutierrez’s estimate of $22,000 for Benebone to review and produce Slack messages is on the low side”, Judge MacKinnon found that “Benebone’s cost estimate of $110,000 to $255,000 for producing the Slack messages is substantially inflated due to its assumption of attorney review of all 30,000 Slack messages at a rate of $400 per hour”, noting that “Benebone did not provide an e-discovery declaration or testimony to support its cost estimate or its position that producing the Slack messages represents an undue burden and is disproportional to the needs of this case.”
As a result, noting that “Benebone seeks the full range of monetary damages in this case, plus injunctive relief against Defendants’ accused products – sales of which are allegedly in the millions of dollars”, Judge MacKinnon granted the defendants’ motion to compel, finding that the Slack production “not unduly burdensome or disproportional to the needs of this case”.
So, what do you think? Do you agree that discovery of Slack messages is “generally comparable to requiring search and production of emails”? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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