#CaseoftheWeekCase Law

#CaseoftheWeek Episode 80: A Cautionary Tale on Language in eDiscovery Negotiations

We continue on our road to 100 (episodes) with the ongoing saga between social media giant Twitter and pop culture icon Elon Musk. The high-profile case is Twitter, Inc. v. Musk, 2022 WL 4095542 (Del Ch. 2022), which heads to trial this Fall.

The decision is from September 7, 2022 decision by Chancellor Kathaleen S. McCormick. We examine whether a party can backtrack on an agreement to limit the number of custodians requested to produce Slack messages.

Keep reading or watch the video to understand the eDiscovery issues.


Good morning and welcome to episode 80 of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant, as well as principal at ESI Attorneys. Thanks so much for joining me this week.

As you know, in our Case of the Week series, each week we choose a recent decision in eDiscovery that highlights key issues for litigators and those involved in the eDiscovery process, and we talk about the practical implications of that decision for you, your clients, and your practice.


All right, let’s jump into this week’s decision. This week’s decision comes to us from the case that Twitter filed against Elon Musk (view timeline of relationship) seeking to enforce the purchase of Twitter and to take the company private. As you probably know from the press reports, this case was filed back in April of 2022 and is headed for a very, very short scheduled trial date coming up in just a little over a month, on October 17, 2022.

This case is being presided over by Chancellor Kathleen McCormick out of the Delaware Chancery Court, and this decision is one of three that Chancellor McCormick issued on September 7th.

Chancellor McCormick has 11 decisions in our eDiscovery Assistant database. Of those, seven are regarding this Twitter case that’s happening. This decision today is tagged, as always, with issues in our eDiscovery Assistant database. Those include instant messaging, Slack, failure to produce, and proportionality.

As I mentioned, we’re in the litigation filed by Twitter against Elon Musk to enforce the purchase agreement. The decisions that the judge has been issuing on a myriad of eDiscovery disputes in this case are usually by letter to counsel. They are short and sweet, but they do a great analysis of the facts, and they also raise some really important points that we need to focus on for purposes of engaging in electronic discovery.

This one in particular is going to be a short case of the week, which is a good break for all of us, but it’s a really important cautionary tale. We’re before the Court on a motion to compel a production of Slack messages from the plaintiffs filed by the defendant.

The Court notes that this is defendant’s fourth motion to compel here. The motion to compel seeks the production of Slack messages from plaintiff’s 42 custodians that had been previously agreed upon. The plaintiffs argue that, in fact, the defendants had agreed that they only needed to produce Slack messages for six or eight custodians and not the full 42.

The plaintiff argues that any production of messages from the full 42 custodians is unduly burdensome and that the defendant had previously only demanded production from the eight custodians and cannot now expand that production back to the original 42.

The Court really starts by reiterating her position from earlier decisions here, and that is that, “[t]here’s a substantial disparity in the eDiscovery burden placed on the warring factions” and notes that the burden on the plaintiff in this case has been substantially greater than the burden on the defendant. As a result, the Court is, “hesitant to impose a large additional discovery burden on plaintiff at this stage in the litigation.”

The previous decisions from the Chancellor in this case detail that plaintiff has produced documents from 42 custodians, where the defendant, Musk, has only produced documents from two custodians.

Now, before we get into the facts and analysis here, it’s important to note that the parties negotiated and entered into a protocol specifically regarding Messaging Platform Custodians, and that protocol demanded a narrower set of custodians to be produced by the plaintiffs that limited the plaintiff’s custodians to eight, as opposed to the original 42 that defendants had sought. This protocol — actually titled Messaging Platform Custodians — includes Slack and text messages, both of which are an issue in this case.

Now, the Court looks to the party’s correspondence for the facts regarding the agreement to produce Slack messages from plaintiff’s custodians. Really, the breakout of the correspondence went something like this: the defendants asked for Slack messages from all 42 custodians, and the plaintiffs countered with six. The defendants then countered with eight.

Now, both of the proposals from the plaintiffs included language that explicitly included Slack with the messaging platforms at issue in negotiating the number of custodians to be produced. The Court found that based on the fact that both of the proposals from the defendants included that language referencing Slack, that the defendants effectively abandoned their initial demand of 42 custodians and agreed to only eight, and then tried to change their position five days later and ask for the 42 custodians’ Slack messages.

The defendants argued that they had always wanted the 42 Slack custodians, that the plaintiffs had originally collected them, and that the failure to remove the language referencing Slack in their second proposal agreeing to eight custodians, was a mistake, just an error.

The Court looked at that and said no, we don’t agree with that. We’re going to refuse to allow you to expand the number of custodians that are sought here. Importantly, the Court notes that

Generally, parties should be able to offer compromised positions without prejudicing their right to move for the full scope of relief to which they are entitled. But that is not what happened here. Defendants gave plaintiffs the impression that they were seeking limited Slack custodians only to then say that they never meant it. In this highly expedited case, there is no time for, ‘just kidding.’ The parties must be able to rely upon one another’s good faith proposals for the eDiscovery process to function.

That’s a really important quote from the court. As we know from other decisions on the case of the week, when a party agrees to a limitation in eDiscovery, the receiving party will need to show evidence from the produced custodians implicating additional custodians to justify broadening the scope. Without that evidence, there is no basis for a court to allow a broader scope than what has been agreed upon by the parties.

But that’s not what happened here. We’ve got a super expedited discovery situation because of a trial date coming up in just over a month. The Court really leverages those two particular facts in holding defendants to their proposal seeking eight custodians. The Court does order the plaintiffs to produce Slack messages for two additional custodians as plaintiffs had produced from six custodians previously.


What are our takeaways from this case? Well, as we just talked about, context is everything, and the speed at which this case is proceeding to trial is a huge factor here in this Court’s decision. But as I mentioned, there’s no evidence put forward by the defendant here that Slack messages produced from the six custodians demonstrated a need for additional custodians, or there isn’t any mention in the Court’s analysis as to any factual basis for why the defendant needed production from the additional custodians with regard to Slack messages.

Now, this decision really does represent, as I mentioned at the outset, a very cautious takeaway. You’ve got to make sure that the proposals that you’re making are exactly what you intend to make. Here the defendants allege that they inadvertently forgot to remove language from their proposal that agreed to limit the plaintiffs production to eight custodians because it specifically referenced Slack as a responsive platform.

Practically speaking, you and I know that the speed at which things are happening here and the number of folks that are likely involved on both sides legal teams, mean that things need to happen at a blistering pace. But it also means that with regard to ediscovery, you’ve got to be very careful about what you agree to.

Language is everything in negotiating the scope of collection and production. Be careful, especially in cases that are moving at a fast pace like this one, or if you’ve got a rocket docket in standard court, which we see a lot on IP cases.


All right, that’s our Case of the Week for this week. Short and sweet as promised. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database— another one involving Slack as well. Slack, as you know, is an instant messaging platform that is becoming of very prominent in eDiscovery.

If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started or drop us a line support@ediscoveryassistant.com. We’ll work with you to get you set up.

Thanks. Have a great rest of the week and I’ll see you on our next episode.

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Catch the Replay

You’ll be able to read episode summaries and watch the recorded show right here on the eDiscovery Assistant blog or access the recorded versions on our Vimeo channel.

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