As employees are increasingly working from home during the COVID-19 pandemic, many communications that would typically occur face-to-face are now taking place over chat systems, such as Skype, Bloomberg Messaging, and Slack. Chats are often more informal and unfiltered than other forms of written communication such as email, and often do not provide context for the conversation. And with that comes legal risk.

This is because chats may qualify as business documents subject to discovery in litigation—especially when those chats discuss business topics. See, e.g., LBBW Luxemburg S.A. v. Wells Fargo Sec. LLC, Case No. 12-CV-7311, 2016 WL 1660498, at *8 (S.D.N.Y. Mar. 29, 2016) (ordering production of Bloomberg instant messages); JUUL Labs, Inc. v. 4X PODS, Civ. No. 18-15444, 2020 WL 747405, at *14-15 (D.N.J. Feb. 13, 2020) (ordering quarterly reporting during the pendency of a lawsuit based on internal Skype messages indicating defendants would take steps to avoid payment of any judgment that was ultimately entered); West Publ’g Corp. v. LegalEase Solutions, LLC, Case No. 18-cv-1445, 2019 WL 8014512, at *8 (D. Minn. Nov. 22, 2019) (ordering non-party’s production of Slack messages).

Companies are therefore left with the difficult question:  how can you best protect against the risks of online chats, while balancing the business need for them?  The answer may lie in the concept of proportionality.

Chat messages, like other written communications, are only subject to discovery under the Federal Rules of Civil Procedure if such discovery is “proportional to the needs of the case.” One way to resist discovery of chats, therefore, is to convince a court that the burden of reviewing chat messages outweighs the benefit. See, e.g., Milbeck v. Truecare, Inc., 2019 WL 4570017, at *3 (C.D. Cal. May 2, 2019) (denying motion to compel Slack messages based on argument that “the burden and expense of the discovery is too great and would clearly outweigh any likely benefit given the compressed discovery and trial schedule, and the amount of discovery requested by Plaintiff that is already underway.”).

To strengthen a company’s proportionality argument, prudent companies should consider adopting a policy that prohibits the use of chats to communicate substantive business information. Such a policy – which should be enforced – allows the company to argue that the burden of collecting and searching chats outweighs the benefit because, according to the policy, chats should not contain substantive business communications. Without substantive business communications, chats are unlikely to contain discoverable information.

If intracompany chat messages are used in a way that makes an outright prohibition on chats for discussing substantive business matters unworkable, General Counsels could consider a policy that directs employees to save designated chats on substantive business matters to an alternate location outside of the chat environment. In discovery, the company could then argue that it only needs to review chats saved to the alternate location, and should not be required to review the presumptively non-substantive communications otherwise contained in the broader chat system.

Not all cases are the same, and while adopting policies like the ones suggested above provides an argument against discoverability, there is no guarantee that a court will not order a broader search and production of chat messages.  Regardless of whether a company adopts a policy on chats, best practices include training employees about the potential discoverability of chat communications, and directing employees not to put anything in chats that they would not want to see read back to them in a deposition or in court.

Chats are here to stay, especially in the new work-from-home reality of COVID-19. But with a little advance planning, companies can effectively navigate this new reality and lessen their legal risk.

Photo of Mike Lieberman Mike Lieberman

Mike Lieberman is a partner in Crowell & Moring’s Litigation, Health Care, and White Collar & Regulatory Enforcement groups, and co-chair of the firm’s E-Discovery Practice. He litigates complex matters in federal, state, and arbitral forums, with a particular focus on commercial health…

Mike Lieberman is a partner in Crowell & Moring’s Litigation, Health Care, and White Collar & Regulatory Enforcement groups, and co-chair of the firm’s E-Discovery Practice. He litigates complex matters in federal, state, and arbitral forums, with a particular focus on commercial health care disputes, class actions, discovery disputes, and fraud cases. Mike’s clients include managed care companies, health benefit plans, clinical laboratories, government contractors, corporate and individual criminal defendants, and various other corporate commercial litigants.

Photo of Shelley Rosenberg Shelley Rosenberg

Rochelle-Leigh (Shelley) Rosenberg is a trial and appellate litigator. As a counsel in Crowell & Moring’s Washington, D.C. office, she practices in the Litigation and Health Care groups and is also a member of the Administrative Law & Regulatory Practice, which is a…

Rochelle-Leigh (Shelley) Rosenberg is a trial and appellate litigator. As a counsel in Crowell & Moring’s Washington, D.C. office, she practices in the Litigation and Health Care groups and is also a member of the Administrative Law & Regulatory Practice, which is a cross-section of all of the firm’s regulatory groups. Shelley’s practice primarily includes representing health care providers, managed care organizations, and other health care entities in various litigation matters. Shelley maintains an active practice. She litigates education access cases on behalf of parents of children with special needs.

Shelley is also a member of the Children’s Law Center Advisory Board. She recently spoke on the Washington Council of Lawyers — Representation of Children and Families Panel at the Summer Pro Bono & Public Interest Forum about how to fit work into one’s practice. She also serves on the Emerging Leaders Committee of Tzedek DC, an independent public interest center at the University of the District of Columbia David A. Clarke School of Law. Tzedek DC’s mission is to safeguard the legal rights of low-income DC residents facing often unjust, life-altering debt collection lawsuits, and other consumer protection crises.

Photo of Genevieve Moreland Genevieve Moreland

Genevieve Moreland is a discovery counsel in Crowell & Moring’s Washington, D.C. office. Genevieve focuses on discovery issues in complex litigations and government investigations, as well as in transactional matters such as mergers and acquisitions. Genevieve has significant experience in all phases of…

Genevieve Moreland is a discovery counsel in Crowell & Moring’s Washington, D.C. office. Genevieve focuses on discovery issues in complex litigations and government investigations, as well as in transactional matters such as mergers and acquisitions. Genevieve has significant experience in all phases of discovery, including leveraging technology to manage large volumes of documents, managing collection processes, and managing large-scale document reviews and productions.

Photo of Mara Lieber Mara Lieber

Mara Lieber is an associate in Crowell & Moring’s New York office and a member of the firm’s Litigation Group.

Mara handles complex commercial disputes from pre-litigation through appeal. Her practice focuses on consumer class actions, product liability claims, complex health care matters…

Mara Lieber is an associate in Crowell & Moring’s New York office and a member of the firm’s Litigation Group.

Mara handles complex commercial disputes from pre-litigation through appeal. Her practice focuses on consumer class actions, product liability claims, complex health care matters, and disputes involving financial institutions. She has represented managed care organizations, financial institutions, insurers, and individuals in complex state and federal litigation. Prior to joining Crowell & Moring, Mara was a litigation associate at a New York law firm, where she concentrated on complex commercial, security, and bankruptcy litigation matters, as well as employment disputes.