Spoliation is the destruction or loss of evidence relevant to litigation. Slack spoliation occurs when an organization deletes messages, fails to preserve Slack data, or allows messages to auto-delete after litigation is anticipated. Courts impose severe sanctions for spoliation, including adverse inference instructions, case dismissal, monetary penalties, and attorney fee awards. Understanding what constitutes Slack spoliation and implementing proper preservation is critical for organizations in litigation. The legal test for spoliation under Federal Rules of Civil Procedure requires: (1) the party had a duty to preserve evidence (because litigation was reasonably anticipated); (2) the evidence was relevant to the case; (3) the evidence was lost or destroyed; (4) the party acted with intent to deprive opposing parties of the evidence OR the loss was the result of negligence/gross negligence (depending on jurisdiction). Once these elements are established, courts impose sanctions. The most severe sanction is an adverse inference instruction—a jury instruction stating that the destroyed evidence would have been unfavorable to the party that destroyed it. This instruction tells juries to assume the worst about the destroyed evidence. For example, if a defendant deletes Slack messages discussing knowledge of a contract violation, the jury can infer that the deleted messages would have shown knowledge of the violation. This is devastating in litigation. Other sanctions include: (1) Monetary sanctions—the defendant must pay the opposing party's costs associated with the spoliation (attorney time investigating the loss, depositions, expert reports); (2) Dismissal—in egregious cases, courts dismiss the defendant's case or strike defenses; (3) Default judgment—in the most severe cases, courts enter judgment against the spoliating party; (4) Contempt—if the spoliation involves court orders or subpoenas, the party can face contempt charges, fines, or even criminal penalties. Slack spoliation cases have resulted in substantial sanctions. In a recent case, a defendant that failed to preserve Slack messages faced an adverse inference instruction that essentially told the jury the deleted messages supported the plaintiff's case. The defendant lost the case and faced attorney fee awards. In another case, a defendant deliberately deleted Slack messages after receiving a litigation hold notice. The court found intentional spoliation and dismissed the defendant's defenses, resulting in a $5M+ judgment. Understanding when litigation is 'reasonably anticipated' is critical. Spoliation obligations begin when litigation is reasonably anticipated—not when a lawsuit is actually filed. Common triggers include: (1) A cease-and-desist letter or formal demand; (2) A threat of litigation; (3) An EEOC charge or regulatory complaint; (4) Knowledge of a dispute likely to result in litigation; (5) A business relationship breakdown likely to result in litigation. Once any of these occur, the organization must preserve all relevant Slack communications. Best practices for avoiding Slack spoliation include: First, establish a litigation hold procedure. When litigation is anticipated, immediately issue a litigation hold to: (1) All affected employees; (2) IT departments; (3) Slack administrators; (4) Legal and compliance teams. The hold should specify: (1) that Slack preservation is required; (2) which Slack workspaces are subject to the hold; (3) what date range is covered; (4) which employees' messages must be preserved; (5) that auto-deletion must be disabled; (6) that message deletion is prohibited. Second, disable auto-deletion. Slack has retention policies that automatically delete old messages. During litigation hold, these policies must be disabled. Messages that would normally auto-delete must be preserved. Third, document the hold. Keep records showing: (1) when the hold was issued; (2) to whom it was issued; (3) what systems are covered; (4) confirmation that the hold was implemented. Fourth, periodically confirm preservation. Don't assume the hold remains in effect. Periodically confirm with IT that: (1) auto-deletion is still disabled; (2) no messages have been deleted; (3) backups are being maintained. Fifth, preserve Slack data. Export relevant Slack data to secure, separate storage. This ensures that even if Slack itself has issues or if the account is compromised, the data is preserved. Sixth, manage message editing and deletion. Even during litigation, employees may continue working and editing/deleting messages. Implement clear policies: (1) prohibit deletion of messages; (2) prohibit substantial editing of messages; (3) make clear that violations of preservation directives could result in discipline or legal action. Seventh, prevent malicious deletion. If you suspect an employee might deliberately delete Slack messages, work with legal and IT to consider: (1) removing the employee's ability to delete messages; (2) monitoring the employee's Slack activity; (3) escalating to management/security; (4) taking legal action if deliberate deletion occurs. Eighth, address Slack integrations. If Slack integrates with other systems (Google Drive, Salesforce, etc.), determine whether data exported to those systems must also be preserved. If so, implement holds on those systems as well. Ninth, educate employees about preservation. Train employees that: (1) a litigation hold is in effect; (2) deleting messages during a hold is prohibited; (3) violations can result in discipline, legal liability, or criminal penalties; (4) the organization may monitor Slack activity to ensure compliance. Tenth, consult with counsel. If you're uncertain about preservation obligations, consult with litigation counsel. The cost of failing to preserve is much higher than the cost of consulting counsel upfront. A special issue is intentional spoliation. If an organization deliberately deletes messages after receiving a litigation hold, courts treat this as egregious conduct. Deliberately destroying evidence can result in: (1) Adverse inference instructions (the most severe sanction); (2) Case dismissal; (3) Default judgment; (4) Criminal contempt charges (in extreme cases); (5) Personal liability for individuals involved in the deletion. Organizations should make absolutely clear to all employees that deliberate deletion during litigation is prohibited and will result in serious consequences. Slack spoliation is a significant litigation risk. Organizations should treat preservation as a critical component of litigation management, implementing robust holds, monitoring preservation, and consulting with counsel to ensure compliance.
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