Handling Preservation of Nontraditional ESI Sources for eDiscovery
Editor’s Note: Preserving electronically stored information (ESI) has become increasingly complex as organizations rely on a growing mix of communication platforms, cloud applications, structured data systems, and AI-enabled technologies. While legal teams often focus on familiar sources such as email and documents, recent court decisions demonstrate that nontraditional data sources can present equally significant preservation risks. In this article, Phil Favro examines the court’s decision in EEOC v. Mia Aesthetics Clinic and the lessons it offers for handling data from platforms such as Slack, Salesforce, and Google Voice. Drawing on the case’s preservation failures, he outlines practical considerations for identifying, preserving, and managing nontraditional ESI before litigation pressures arise. The discussion highlights the importance of proactive planning, defensible processes, and understanding how modern data systems operate within the enterprise. Ultimately, the article reinforces a core eDiscovery principle: organizations that prepare for preservation challenges before litigation are better positioned to avoid costly discovery disputes later.
Handling Preservation of Nontraditional ESI Sources for eDiscovery
By Phil Favro, Contributing Author for HaystackID
Preserving relevant sources of electronically stored information (ESI) has always had a ring of simplicity. The obligation seems straightforward enough: when litigation is reasonably anticipated, parties to litigation take reasonable steps to keep relevant evidence for pending or anticipated litigation. What could be so tough about that?
Of course, the difficulty lies far beyond the few words that summarize a party’s common law preservation obligation in civil litigation. The process is both challenging and complex. That is generally the case for all litigants. Individual parties often struggle with retaining text messages and social media posts. And now—on the frontier of eDiscovery—they will have to preserve AI application prompts and outputs when they are relevant and proportional to the claims or defenses in a case.
Preservation is far more complicated for organizations, such as corporate enterprises and governments. Organizations have many ESI sources, including messages from sanctioned communications channels, other forms of unstructured data, and databases. Add into that mix the increasing amount of AI-related content, along with various forms of non-sanctioned ESI that employees generate in the penumbra of shadow IT, and there can be little doubt why organizations struggle to execute on their common law preservation obligations.
This is especially the case for nontraditional sources of ESI. Companies particularly struggle with preservation demands involving data from structured data sources, certain chat applications, and other atypical data types. Properly handling the preservation of nontraditional data can be challenging even for sophisticated litigants that are represented by counsel who are experienced in the field of ESI.
So, it comes as little surprise when companies fail to meet ESI preservation standards for nontraditional ESI sources and must account for their shortcomings. The recent decision in EEOC v. Mia Aesthetics Clinic exemplifies this trend, together with the challenges companies can face when dealing with nontraditional data sources like Slack, Salesforce, and Google Voice Data. In Mia Aesthetics Clinic, the court found that the defendants failed to preserve those specific sources of data and recommended the imposition of sanctions. [1]
Despite the preservation difficulties the defendants faced in Mia Aesthetics Clinic, that case offers guidance on how enterprises can better handle the complexities of ESI preservation, even for nontraditional data sources. By examining data sources in advance of litigation and developing a playbook for handling the issues, companies can proactively prepare upstream for the inevitable downstream discovery issues that arise in the reactive environment of litigation.
Preserving Nontraditional ESI Sources in Mia Aesthetics Clinic
Mia Aesthetics Clinic involves disability claims that the Equal Employment Opportunity Commission (EEOC) brought against the defendants. The claims arose after a former employee (Webb) filed a charge with the EEOC, asserting that the defendants failed to provide her with a reasonable accommodation for her disability.
The EEOC’s Motion
The parties in Mia Aesthetics Clinic had multiple discovery disputes that eventually led the EEOC to seek spoliation sanctions against the defendants for their failure to preserve relevant information from three different data sources: Salesforce, Slack, and Google Workspace. The EEOC’s sanctions motion arose, in particular, after it argued that the defendants failed to properly comply with the court’s earlier discovery orders that directed defendants to conduct additional searches and produce responsive Slack, Salesforce, and Google Voice Data information. [2] In one of its orders, the court directed the defendants to engage an eDiscovery service provider to assist with this process.
The Defendants’ Position
Responding to the EEOC’s sanctions motion, the defendants argued that sanctions were not appropriate because they produced responsive documents, such as emails the EEOC had requested and Webb’s personnel file. Regarding the Salesforce, Slack, and Google Voice Data information, the defendants maintained that they had undertaken a fairly thorough investigation to explore whether they could produce relevant information. Upon concluding their investigation, the defendants represented the following regarding the requested Salesforce, Slack, and Google Voice Data:
- The Salesforce data at issue was no longer available because it was previously held in “an account that has been inactive for more than six (6) months.”
- The Slack data the EEOC requested, which had been associated with a free Slack plan, had long since been deleted as Slack eliminates data for its free plan accounts after a year “on a rolling basis.”
- The Google Voice Data was no longer available because the defendants previously canceled their subscription to Google Workspace when they began using Microsoft 365 as their enterprise communication and data platform. Canceling the Google Workspace subscription eliminated any Google Voice Data that was not otherwise preserved, including “texts, call logs, [and] voicemails.”
The defendants maintained that the Salesforce, Slack, and Google Voice Data information “had simply been destroyed by their various custodians,” for which the defendants were not ultimately responsible. Nor were they responsible, defendants argued, for data loss caused by the “routine operation of various ancillary data systems” within their operations.
The Court Imposes Sanctions on the Defendants
The court disagreed with the defendants and held that sanctions were appropriate under Federal Rule of Civil Procedure 37(e)(1). The court (Magistrate Judge Anna Howard) explained that the defendants had common law and regulatory (29 C.F.R. § 1602.14) obligations to preserve relevant Salesforce, Slack, and Google Voice Data information, and they unreasonably delayed taking steps to preserve those data sources for several years, which resulted in their deletion. Regarding the defendants’ preservation efforts, Judge Howard indicated that they did not take adequate steps to identify and then preserve relevant Salesforce, Slack, and Google Voice Data information once they received notice of Webb’s charge on December 29, 2021.
Diligent Efforts Could Have Preserved the Data
Concerning the Salesforce data, the court reasoned that the defendants could have obtained information from Webb’s Salesforce account had they acted more diligently. Webb left the defendants’ employ on August 16, 2021. According to Judge Howard, that meant the defendants still had six weeks in which they could have taken steps to preserve the relevant Salesforce materials before they became unavailable. Instead, the defendants apparently waited until 2025 before looking into preserving the Salesforce data.
Similarly, the court determined that the defendants should have been more proactive in retaining the Slack and Google Voice Data, observing that it “had an opportunity to restore or preserve the Slack and Google Voice data prior to deletion.” For Slack data, Judge Howard concluded that the defendants had three plus months after receiving Webb’s charge to preserve data from her free Slack account before it was deleted. Nevertheless, they apparently took no action to obtain relevant Slack data for multiple years.
For the Google Voice Data, Webb’s information was apparently deleted within 20 days after the defendants deactivated her account. While that data almost certainly would have been eliminated before the defendants’ preservation duty attached, Judge Howard indicated that the defendants still had well over a year before they would cancel their Google Workspace subscription. During that time, they could have taken steps to identify responsive information relating to Webb from “other employees, including those who may have had interactions with Ms. Webb using Google Voice.”
Finally, the court rejected the notion that the “routine operation of various ancillary data systems” should excuse the deletion of the Salesforce, Slack, and Google Voice Data. The court could not countenance such an assertion since it “would create a perverse result where companies with poor or inadequate document preservation policies would in fact be rewarded for adopting those very policies.”
Judge Howard concluded that the EEOC suffered prejudice and that “after-the-fact deposition testimony” from Webb could not adequately replace the lost evidence or otherwise ameliorate the harm the EEOC incurred. Judge Howard recommended to the district court that the following curative measures issue to address the defendants’ deletion of the Salesforce, Slack, and Google Voice Data information: the parties should be allowed to present evidence to the jury regarding the spoliation of evidence; the jury should be instructed that it may consider the spoliation evidence; and certain issues of material fact be determined in connection with any summary judgment motion.
Developing a Playbook for Preserving Nontraditional ESI
Mia Aesthetics Clinic makes clear that there are a number of difficulties associated with preserving nontraditional data types. Data from Salesforce and Slack is not seamlessly integrated into the corporate network and—unlike email and unstructured data stored in enterprise cloud sites—requires additional steps to ensure it’s collected and preserved. Similarly, keeping Google Voice data, including voicemail, call logs, and related information, may also involve other measures beyond hitting a collection button.
How might an organization consider preserving nontraditional data sources?
Being proactive is surely a good first step. Organizations that proactively identify relevant data sources after a duty to preserve attaches, learn what steps are needed to preserve those sources, and then take actionable steps to collect the data will more likely be able to meet ESI preservation demands in a particular lawsuit.
Organizations—particularly repeat corporate litigants—could aspire to developing a far better process for preserving relevant information, including nontraditional data sources. Rather than waiting for the moment a lawsuit is filed and served, organizations may consider preparing a playbook that maps out how they might preserve relevant data sources for civil litigation.
A playbook may provide guidance on potential sources of relevant information within the enterprise. It could delineate precise steps and practical directives on how to collect nontraditional data types. For example, if an enterprise uses Slack for corporate messaging, the playbook could identify the company’s plan type, account features, and retention specifications, along with detailed instructions on how to proceed with different collection approaches. A playbook can also designate personnel responsible for executing tasks. All of which would have helped the defendants in Mia Aesthetics Clinic address preservation issues with the nontraditional data in that litigation.
A playbook should work together with existing corporate information policies, including company information retention, litigation hold, and acceptable use policies. In that context, a playbook can amplify corporate policy directives regarding when and how to modify aspects of information systems to keep relevant information while allowing unrelated, irrelevant data to remain on schedule for deletion under the records retention schedule. When properly implemented and followed, this approach should more readily address the court’s concern from Mia Aesthetics Clinic about condoning poorly prepared or executed policies that operate to deprive litigants of relevant information after a duty to preserve triggers.
These suggestions represent only a few of the many items that an effective playbook could encompass. Checklists, process audits, playbook updates, and other provisions may further assist organizations with preserving both nontraditional and traditional ESI sources. And while no process—no matter how effective—will truly be perfect, playbooks can go a long way toward helping organizations address preservation issues for both nontraditional and traditional data sources.
[1] Equal Emp. Opportunity Comm’n v. Mia Aesthetics Clinic, ATL, LLC, No. 1:24-CV-3407-MLB-AWH, 2026 WL 1045366 (N.D. Ga. Apr. 7, 2026). [2] See Equal Emp. Opportunity Comm’n v. Mia Aesthetics Clinic, ATL, LLC, 2025 WL 2417759 (N.D. Ga. Aug. 18, 2025); Equal Emp. Opportunity Comm’n v. Mia Aesthetics Clinic ATL LLC, 2025 WL 1661474 (N.D. Ga. May 30, 2025).
About Phil Favro
Phil Favro is the founder of Favro Law PLLC, where he counsels clients on ESI, AI, and discovery issues and serves as a special master, mediator, and expert witness. Phil is nationally recognized for his expertise on ESI, discovery, and information governance, with courts acknowledging his credentials. See, e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2025 WL 2061665 (S.D.N.Y. July 23, 2025). This background makes Phil particularly well-suited to counsel clients and advise courts on information-related issues. As a special master, Phil is acclaimed for his collaborative approach, working with parties to find stipulated solutions to complex issues. For disputes that require adjudication, he is renowned for the clarity and vigor of his written dispositions, which are available on legal search engines.
About HaystackID®
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SOURCE: HaystackID