In Lubrizol Corp. v. IBM Corp., No. 1:21-CV-00870-DAR (N.D. Ohio May 15, 2023), Ohio Magistrate Judge Jennifer Dowdell Armstrong granted the plaintiff’s motion to compel the defendant to produce the entirety of any Slack conversation containing 20 or fewer total messages that has at least one responsive message; and the 10 messages preceding or following any responsive Slack message in a Slack channel containing more than 20 total messages. She also ordered the plaintiff to do the same for Microsoft Teams messages.

Case Discussion

In this case where the plaintiff alleged breach of contract and fraud a project to implement a new enterprise resource planning software, each party filed a letter requesting a discovery conference regarding purported deficiencies. The plaintiff asked the Court to order defendant to produce the full Slack conversation for any Slack thread containing at least one responsive message. After a telephonic discovery conference, the Court issued an order requiring the parties to submit a joint status report advising me which, if any, discovery issues remained unresolved despite the parties’ efforts.

On April 17, 2023, the parties submitted a joint status report indicating that they had resolved all outstanding issues except the dispute regarding defendant’s production of Slack messages. The plaintiff had narrowed its position, requesting: (1) that, for any Slack conversation containing 20 total messages or fewer, defendant be required to produce the entire conversation, so long as the conversation contains at least one responsive message; and (2) that, for any Slack conversation containing more than 20 total messages, defendant be required to produce the 10 messages preceding and following any responsive message.

The defendant objected, arguing that it had already reviewed all Slack messages that hit on any of the parties’ agreed search terms – as well as the 10 messages before and after any message that hit on a search term – and produced any message in that window that provided context for the relevant discussion and that adopting the plaintiff’s proposal would impose an undue burden.

Both parties offered an analogy to support their position. The defendant argued that, because Slack messages are stored as individual JSON files, the plaintiff’s proposal was the equivalent of requiring a party to produce irrelevant hard copy documents simply because they are located in the same box as responsive documents. The plaintiff argued that Slack messages are most analogous to emails or text messages, and further asserts that parties are regularly required to produce the entirety of an email or a text message conversation, even if portions of the document are irrelevant.

Judge’s Ruling

Judge Armstrong stated: “After careful consideration, I conclude that IBM’s analogy to hard copy documents is inapposite. Different hard copy documents are not originally created in a single box, and their subsequent placement in the same box may be the result of sheer happenstance. By contrast, the parties do not dispute that all messages in a particular Slack channel appear in a single conversation, and that a participant in a conversation can view all of those messages at once, regardless of when they were originally sent. I therefore reject IBM’s argument that each Slack message must be treated as a separate document like hard copy documents in the same box, and instead conclude that Slack messages are most comparable to text messages rather than hard copy documents.”

Ultimately, Judge Armstrong stated: “I conclude that Lubrizol’s proposal is the most appropriate approach for this case and that IBM should be required to produce surrounding messages even if IBM believes that some or all of those messages are not relevant to this case.” Her reasons were:

• “First, there appears to be a legitimate dispute regarding whether all the messages that IBM has withheld are truly irrelevant. In particular, it appears that some of the messages relate to similar S4 integration work that IBM has performed or is performing for at least one other client.”
• “Second, I agree with Lubrizol that the presence of a protective order in this case substantially decreases any concerns regarding production of purportedly irrelevant messages that may otherwise be sensitive, such as messages regarding other IBM projects or communications about the personal lives of IBM employees.”
• “Third, I conclude that IBM has not established that it would be unduly burdensome for it to comply with Lubrizol’s proposal given the scope of this case, which involves a substantial dispute between two large commercial parties” as “IBM has not provided any information regarding the number of messages encompassed by Lubrizol’s revised proposal or the burden and expense associated with complying with that proposal.”

As a result, Judge Armstrong granted the plaintiff’s motion to compel. She also stated: “IBM notes that Lubrizol has similarly produced messages from its own instant messaging platform, Microsoft Teams, as individual messages. IBM argues that any protocol applying to its Slack messages should also apply to Lubrizol’s Microsoft Teams messages. Lubrizol has stated that it agrees to abide by the same protocol”. So, she ordered the plaintiff to do so.

So, what do you think? Is the 10 messages before and after determination for Slack conversation production appropriate? Or does it seem arbitrary? Please share any comments you might have or if you’d like to know more about a particular topic.

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