In Episode 174, Kelly Twigger discusses whether a party not on an enterprise license for Slack has an obligation to produce data from the platform and what you need to do in advance of filing a motion to compel in Vaughn v. Solera Holdings, LLC.
Introduction
Welcome to our Case of the Week segment on our Meet and Confer podcast. My name is Kelly Twigger. I am the Principal at ESI Attorneys, a law firm for ediscovery and information law, as well as the CEO and Founder of Minerva26, 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 Minerva26 in partnership with ACEDS. Each week on this segment, I choose a recent decision on ediscovery 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 fairly routine competing motions for compel, but the Court’s decision offers some really useful practical lessons for you to take into consideration.
This week’s case comes to us from Vaughn v. Solera Holdings, LLC. This is a decision from March 12, 2025 from United States District Judge David Godbey. District 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 and control, instant messaging, failure to produce and proportionality.
This motion to compel a 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. In this particular decision, District Judge Godbey rolls all the facts together in ruling on both motions, so we just kind of combined facts and analysis together.
Facts and Analysis
The first and most important part of this decision is right at the outset, where District 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 District 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:
Federal Rule of Civil Procedure 26 allows parties to “obtain discovery regarding any nonprivileged 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 26(b)” 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 26(b)(1)” regarding the facts, application of law to facts, or opinions about either. Further, a litigant may serve interrogatories on another party relating “to any matter than may be inquired into under Rule 26(b).” To enforce discovery rights, a “party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” The Fifth Circuit requires the party seeking to prevent discovery to specify why the discovery is not relevant or show that it fails the proportionality requirements.
Courts construe relevance broadly, as a document need not, by itself, prove or disprove a claim or defense or have strong probative force to be relevant. A district court has wide discretion to supervise discovery, however, and 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 proposed discovery outweighs its potential benefit.
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 these motions to compel.
With that standard as a backup, District Judge Godbey then looked initially at the defendants’ 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 (1) “derogatory race-based language (such as racial slurs)” in Request for Admission No. 2 and Interrogatory No. 13; (2) “derogatory language about sexual orientation (such as slurs against gay, lesbian, or bisexual individuals)” in Request for Admission No. 4 and Interrogatory No. 15; and (3) “misogynistic slurs”. 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.
But it’s what comes next that I want you to pay attention to. The Court said that “a party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity and must explain the specific and particular way in which a request is vague.” The Court found here that the plaintiff had not done that. Now, it’s one of our themes on Case of the Week — because we see this regularly here — a party arguing for a motion 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 that can persuade the court.
Now, accepting, of course, that I am always Monday morning quarterbacking here, I haven’t seen the actual requests that we are talking about in this motion. 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. 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. 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 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.
Let’s move on to the plaintiff’s motion to compel. 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 defendants should be compelled to produce documents regarding her supervisor’s performance. Defendants 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.
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 up 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.
The next issue in plaintiff’s motion was that plaintiff sought communications between other employees regarding plaintiff’s allegations that were housed in the defendants’ Slack instance. 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. The Court agreed. With absolutely zero discussion in his opinion, District Judge Godbey held that “Because the Slack documents are not in Defendants’ possession, custody, or control, the Court denies Vaughn’s motion to compel the Slack documents.” That’s it. No discussion.
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 ediscovery. 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 Godbey, because the defendants 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 District 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.
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. 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.
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 defendants 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.
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. 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.
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 they did, 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.
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 defendants 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. 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.
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.
Takeaways
This 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 matters and keep checking back, because they change often.
Conclusion
That’s our Case of the Week for this week. Be sure to follow the Meet and Confer podcast on your favorite platform, and we’ll see you next time.
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Have a great week!
