Why Agreeing on Short Message Context Is Critical

One disconnected Microsoft Teams message can look like evidence, but without the surrounding thread you can miss valuable context that can lead to additional evidence. We walk through Valcrum LLC v Dexter Axle Company LLC, a trademark and trade dress dispute that turns into a focused battle over Teams chat discovery, missing context, and what courts will actually order when keyword search fails on short form messaging.

We trace the timeline from early requests through rolling productions where Teams content shows up as standalone messages, then a later production suddenly arrives with organized threads that reveal what everyone has been missing. From there, we unpack the procedural pressure points that can decide a motion before the judge ever reaches the merits: meet and confer certification requirements, building a real paper trail, and why a separate Rule 30(b)(6) motion gets denied for lack of good-faith conferral.

On the substance, we dig into the court’s practical compromise. The judge refused to force a full reconstruction of all Teams chats into threads, leaning on proportionality and Sedona Principle 6, but still rejected the idea that keyword searches alone are “good enough” for Teams. The result is a context window of three days before and after disputed messages, plus an order requiring unredacted production of threads when objections are vague and unsupported. If you litigate ESI, negotiate an ESI protocol, or collect Teams and Slack data, you’ll leave with concrete language and strategy to use right away. Subscribe, share this with your litigation team, and leave a review with your biggest Teams discovery question.

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.  

Transcript

Why Case Law Is Speeding Up

Kelly Twigger 0:32

Welcome back to the Meet and Confer podcast. This is the Case of the Week series where I take one recent decision or order on the discovery of electronically stored information and turn it into something that you can use in your practice right away. My name is Kelly Twigger. I'm the CEO and founder at Minerva 26 and the principal at ESI Attorneys. Before we get into today's case, I want to just tell you a little bit about something we're going to do, start doing a little differently. The case law on discovery is moving very quickly right now. We're on pace for close to 6,000 decisions in 2026. And there's really no way for one bi-weekly episode to cover all of the case law that matters for you in your practice. So starting in September, we're going to start putting out short form analysis on other decisions worth knowing about on social media. You can follow along with me or Minerva26 on LinkedIn, Instagram, Facebook, and maybe even TikTok. Who knows? I may go there. Follow along there for the cases that don't make it into a full episode for case of the week, and you'll stay a lot closer to current than you would waiting for us every other week. All

The Problem With Short Chat Messages

Kelly Twigger 1:40

right, now on to today's case. This is a discovery dispute out of a trademark and trade dress fight over, of all things, a hubcap. But don't let that fool you. The actual dispute in front of the court is entirely about Microsoft Teams messages. And it gives us a second data point on a question that we've been tracking since the Lubrazal Corp versus IBM decision we covered back in May 2023. The challenge of short form messaging, meaning Microsoft Teams or Slack or WhatsApp or any platform that uses short form messaging, Discord is another one. There's dozens. It's not new to eDiscovery professionals, but if you're a litigator who hasn't dealt with them yet, you need to pay attention. And Microsoft Teams is something that many of your clients are using, as is Slack, as is WhatsApp. So the lessons that we're going to talk about today are really critical for you to understand how evidence is being created on those platforms and how it may need to be preserved and produced. Short, informal chat messages, whether we're talking about Slack or Teams, don't carry the context the way that email does. A search term hit on five-word on a five-word Teams message might tell you almost nothing about what was actually being discussed. The issue is that the way people communicate on short form messaging is very abbreviated. It's rarely in full sentences. It's sometimes even shorter than you might get in a text message. Unless, of course, you have a teenager and the answers that you get are good, yeah, and some sort of abbreviation for something you don't actually understand. Because of these challenges with using search terms, which has been our normal way of finding hits for key relevant data, courts have had to build remedies for short-form messaging out of nothing because the federal rules of civil procedure were really written in 2006 for a world of email and attachments, not threaded chat. So we first saw an answer to this question in the Lubrezall case that I mentioned that we covered on episode uh 108. Again, that was back in May 2023. The court there in Lubrazal analyzed, I'm sorry, analogized, not analyzed, Slack messages to text message threads and ordered production of entire conversations of 20 messages or fewer, where at least one message was responsive. And for longer threads that might cover multiple topics, the 10 messages immediately before and after the responsive search term. That same formula applied to both Slack and Microsoft's team messages in Luberzall for both parties. And it's worth knowing where that formula actually came from for purposes of the case today. It wasn't the court's own invention, but it was what Luberzall proposed in its protocol. And IBM never came back with any burden data to challenge it. So the court just adopted what Luberzall asked for. Today's case, which comes to us from Valcrum LLC versus Dexter Ale Company LLC, is out of the Northern District of Indiana and it runs into the exact same problem.

Valcrum Versus Dexter Axle Timeline

Kelly Twigger 4:56

But this time, the outcome depends heavily on what the plaintiff actually asked for and how the story unfolded. So let's walk through it from the beginning. All right, the underlying case here is a trademark and trade dress, trade dress dispute over a hubcap design for medium-duty trailer axles. I promise my voice is going to start working here anytime. Valcrum says that Dexter Ale started copying the red color and hexagonal shape of Valcrum's hubcap shortly after Valcrum terminated a supply agreement between the two companies. We are before the court on a discovery fright over Dexter Axles Teams messages. Say that five times fast. As always, and one of our key themes here on the case of the week, the timeline is critical. So let's talk about that. It starts in September of 2024. Valcrum first served its uh set of requests for production on September 26th. That was the first set. Nothing was produced in response. So several months later, on January 7th, 2025, Valcrum's council reached out to check in with Dexter. That prompted Dexter Axel to start producing documents a week later, on January 14th, and then to keep producing on and off enrolling productions through June 9th, 2025. In the course of those 10 separate volumes, Dexter Axel produced individual Teams messages, each message produced on its own, exactly as Dexter Axel happened to keep it, with nothing connecting it to a larger conversation. Valcrum then asked for Teams messages again in October 2025 in its second set of requests for production. Mind you, I haven't given you any information that Valcrum came back to Dexter Axel inquiring about the individual Teams messages because there isn't any. Starting in mid-December of 2025, the two sides started talking about Teams messages. So roughly six months after the first 10 volumes of production ended with individual Teams messages and during the appendacy of the second set of requests for production. The two sides started talking by phone and email, and that conversation continued through January and February of 2026. And while that conversation was happening between the parties, something changed in the productions. On January 10th, 2026, Dexter Axel produced an 11th volume of documents, and this one looked a little different as it pertained to the team's messages. Instead of individual disconnected messages, volume 11 combined everything into organized chronological threads, and it included some new correspondence Valcrum hadn't seen before. That's the moment the missing context became visible, and council realized what they were missing. They also should have realized that Dexter Axel had the ability to create chronological Teams threads from its system. But that doesn't come up. An individual Teams message sitting on its own doesn't tell you that anything is missing. It's only once you see a full thread that you realize how much context wasn't in the first 10 volumes of information that was produced. So on February 6, 2026, Valcrum went back with a third request for set of a third set of requests for production of documents. And this one asked for two specific things. The entirety of the team's messages from volumes one through 10. What that means, the entirety is really unclear, reorganized into full threads and unredacted copies of the threaded conversations in volume 11. Dexter Axel responded with objections on March 9th and then made what turned out to be its final production on March 23rd, roughly a year and a half after all of this started. But that final production did not include what Valcrum had asked for in its third set of requests for production. So on April 14th, Valcrum filed a motion to compel, asking the court to order exactly what it had been asking for since February. The entirety of the team's messages reorganized into threads, plus the unredacted volume 11 conversations. Now, the court's decision doesn't actually spell out what the entirety of the team's messages is, but it might just be that the entirety of the thread that's being discussed that hit on the search term that was originally produced. It's really hard to understand. There's likely more information in the party's papers, but here on Case of the Week, we confine ourselves to the text of the court's decision. Now, Valcrum didn't just repeat the request in the motion. It gave the court three specific reasons why it was entitled to it. First, Valcrum argued that it was prejudice for not having a context from Teams. Three witnesses had already been deposed using only the disconnected context-free messages before Volume 11 ever existed with the threads. And Valcrum argued that though the not having the full context hurt those depositions and would hurt any depositions still to come. Second, Valcrum argued that even the threaded conversations in Volume 11 couldn't really be understood because Dexter Axel had redacted them so heavily. And third, Valcrum argued that the whole shortage of Teams messages wasn't accidental. It said that Dexter Axel's search methodology was flawed because messages that should have matched Dexter Axel's own search terms were missing from the production entirely. Now the order actually works through four separate questions, one at a time, and they don't all come out the same way. So let's take them in the order that the court laid out.

Meet And Confer Mistakes That Matter

Kelly Twigger 10:52

The first question dealt with by the court wasn't about teens messages at all. It was about whether a key procedural issue was going to determine whether Valcrum's motion was even properly in front of the court. Now that's scary. If you're bringing a motion, you certainly don't want to be facing a procedural hurdle that you didn't get over. Local Rule 37.1 in the Northern District of Indiana, where the case is filed, requires that anyone filing a discovery motion to attach a certification saying that the parties tried to work things out, and that if that certification is missing or defective, the court can throw the whole motion out without ever reaching a merit. Now Valcrum did file a certification, but it cited Indiana trial rules instead of the federal rules of civil procedure, which meant technically it hadn't complied with Local Rule 37-1. Now the court decided to hear the motion anyway, and here's why. Valcrum had, in fact, documented months of real back and forth with Dexter Axel, the whole timeline that we just walked through. And separately, Dexter Axel had made it clear that it was not going to produce anything further, no matter what. So between those two facts, the court concluded that more conferring wasn't going to fix anything, and court intervention was necessary either way. So the certification defects got excused and the court moved on. Now, right alongside that ruling, in the same part of the order, the court also decided Valcrump's separate motion to compel a Rule 30 B6 deposition. Unlike the teams dispute, the actual back and forth on the deposition topics was very thin. The parties traded a couple of emails restating their positions. Dexter Axel offered to talk further, and that conversation doesn't appear to have ever happened. So this time, the court didn't excuse anything. It denied the motion to compel the deposition outright for failing to meet and confer in good faith. Same order, same section, two meet and confer problems, and the difference was simple. One side had a real record of trying, and the other didn't.

Timeliness And The Duty To Supplement

Kelly Twigger 13:00

The second question before the court was timeliness. And Dexter Axel raised this one directly, arguing that Valcrum's whole motion should be thrown out because it came too late. Remember that I mentioned to you that Valcrum didn't follow up on the Team's message or any context until after volume 11 was produced. Dexter Axel's position was that its production was largely finished by January of 2025, and that any delay after that was Valcrum's own fault for waiting to send follow-up requests. The court rejected that completely, calling it an attempt to shift the burden onto Valcrum, while Dexter Axel ignored its own ongoing duty to keep supplementing its production. The court made a broader point here that's worth remembering on its own. The duty to keep supplementing discovery is automatic under the rules. It doesn't stop when a deadline passes, and a requesting party doesn't have to keep asking again and again just to preserve the right to compel later. Dexter Axel separately argued that Valcrum's own February 6th request came too late in the case to count, but the court rejected that too, since fact discovery didn't close until April 30th, and February 6th was nearly three months ahead of that deadline. Now, if we think back to some of the earlier episodes on Case of the Week, many courts have declined to allow a plaintiff like Falcram to make this argument, having never objected to the lack of context previously. And the question is really whether providing context in short-term, short-form messages is supplementing a production. That question has never been addressed. And maybe this court just addressed it by saying it is. We'll have to keep an eye on whether providing context in short-term messages is just supplementing existing discovery because that's a big potential issue for parties producing short-form or instant messages. Given a party's obligations under Rule 26, I think that it's likely correct that supplementing your productions does include providing context for short-form messages. But I don't think anyone has thought of context in that way so far. Certainly, no case law has suggested it that I know of. Now, finally, let's talk about the actual team's messages.

What The Court Orders For Teams

Kelly Twigger 15:22

Remember, Valcram's motion asked for two things: the entirety of the messages reorganized into threads and the unredacted volume 11 conversations. The court split these apart completely and treated them very differently. On the first ask, the entirety of the reconstruction, the court said no. In its papers, Dexter Axel explained that Microsoft Teams stores this kind of data as individual messages sitting in each custodian's mailbox, not filed away as a single thread. Now that's a real technical explanation, not just an excuse. And combined with Sedona Principle 6, which says a responding party is generally best positioned to manage its own production, that was enough for the court to say no to a full reconstruction of the Teams messages. Now, let's take for a minute Dexter Axel's architecture explanation about the way that Teams messages are stored. It's accurate, but it's also incomplete in a way that probably mattered but wasn't presented to the court here. Microsoft's own compliance tools, which is called Purview, and many of you know it, have had a feature for years called conversation threading, built specifically to take those scattered individual messages and reconstruct them into a full readable transcript. That's likely exactly how Dexter Axel produced the threaded Teams messages in production 11. So the underlying storage may be scattered, but pulling it back together isn't some massive engineering undertaking. It's a built-in feature of the very platform that scattered the messages in the first place. Now, nothing in this record, this decision from the court, suggests that Valcrum ever raised that point. And an argument that goes unchallenged tends to win. Now that's not a knock on the court. And also, it could be that Valcom raised this in the papers, and those are not before us on this episode today. So what I'm telling you is this this is a gap in what potentially got argued, and one you should pay attention to when you are requesting Teams or Slack messages or any other form of messaging. You need to understand the technical aspects of how data coming from the platform that you're requesting for is organized and able to be reconstructed. If you're asking for reconstruction, you need to understand technically how that works. Based on what's only in the four corners of the decision from the court, Falcram didn't know that or didn't put it before the court, or at least the court didn't consider it. Still, the court didn't let Dexter Axel off the hook entirely. Dexter Axel separately argued that its original production was good enough on its own, but the court rejected that too, quoting the Kim vs. Cushman and Wakefield case out of the Northern District of California. Cushman held that keyword searches alone are inadequate for Teams data because conversations on these platforms are shorter, more informal, and less likely to use full names than email. And that's exactly the flawed methodology problem that Falcom had been pointing at. So some remedy was necessary for the court. But the court was equally clear that Falcor's own proposed fix, producing all teams correspondence, was too broad. And those are the court's own words. Instead of granting either side's position outright, the court reached for the formula from a completely different case, one that we did cover here on Case of the Week, called Deal Genius versus O2 Cool, out of Illinois, where a different judge had already ordered teams messages produced within a three-day window around disputed communications. That's what Balcrum actually got. Three days before and three days after each disputed message. Not the entirety of anything and not a rebuilt thread, just more individual messages clustered around what's already in dispute. That's real relief, but a much narrower version of it than what Valcrum's motion asked for, and likely much less helpful because threaded conversations are going to be a lot easier to review in context than individual messages that have to be pieced back together. If Valcrum had made the argument about the threading and the fact that Dexter Axel had clearly done it in its production 11, that may have carried the day here. On the second ask, though, the unredacted volume 11 threads, Valcrum did get exactly what it asked for. Dexter Axel's redaction objections were the standard list. Overbroad, unduly burdensome, vague, ambiguous, not proportional to the needs of the case. Dexter never explained any of them further, and the court called that out directly, citing McGrath versus Everest National Insurance Company, which held that a party's reflexive invocation of the same baseless, often abused litany of objections without any actual specificity gets waived. That's harsh. So those threads have to come out in full, unredacted. And that brings us to the fourth and final question: fees. Even though Valcrum won real relief on team's messages, the court declined to award it any fees for two reasons. Dexter Axel's objections were substantially justified, given how unsettled the whole area of law is, and Valcrum's own certification failure, the same one that the court excused earlier just to hear the motion in the first place, came back to bite it at the very end to disallow fees.

Practical Takeaways And Better Protocols

Kelly Twigger 20:54

So, what are our takeaways from this decision? There are several. First, get your certification right and don't treat it as boilerplate. Don't count on the court having enough to overcome the procedural requirement. Make sure you file the correct certification and you have the facts to back it up. Cite the correct rule, the correct jurisdiction every time. Valcram's counsel didn't, and that put the entire motion at risk of denial on a threshold issue that had nothing to do with the merit. It also seems to cost them getting fees and costs on the motion that would have otherwise been available under Rule 37. Second, document, document, document every meet and confer effort as you go, contemporaneously, not reconstructed after the fact. That documented record is what saved Valcrum's motion on the team's messages, despite the certification defect. Its absence is exactly what sank the rule 30 B6 motion, and in that same very same section of the order. The paperwork is easy to get wrong. Record of your actual efforts is what a court will rely on. Third, and this one runs in both directions, depending which side of the table you're on, the duty to supplement discovery is automatic and continuing, and it doesn't stop just because a discovery deadline passes. If you're the producing party, you do not get to point at the requesting party's silence and call that an excuse to stop supplementing. If your own position is that most of the documents were already gathered early on, a court may treat that as proof of the burden of supplementing further with small, not as a defense to it entirely. If you're the requesting party, you are not required to keep re-asking every few months just to preserve your right to compel later. And a motion filed close to a production's actual end date generally will be timely, even if the underlying delay looks long on paper. That's what this court says, at least. Note my comments earlier that I'm not sure every federal court that has addressed the timeliness of discovery follow-ups would agree. And we still have the open issue of whether or not providing context in short-firm messaging is the equivalent of supplementing productions. It probably is because it's additional, potentially relevant information, but that's still an open issue. Be proactive in following up on discovery issues within a couple of weeks of receiving a production. In this kind of instance, you want to make sure that you are evaluating all of the different types of data that you're receiving and that you're getting context around them. More and more we're finding less that email is an issue and more that Slack, Teams, text messages, WhatsApp, other pieces of data that are short-form messaging are becoming the crucial evidence in a matter. You need to make sure you understand how those platforms work technologically and get into what information can be provided or produced. There are plenty of people out there that can help you with that. Fourth, when you receive short form messages, Teams, Slack, text produced as standalone items rather than threads. Don't assume what you're looking at is complete. An individual chat message doesn't announce that it's missing its surrounding conversation. Ask early and directly. Is this an individual pool or a complete thread? Know the technology. We talked about that. You use it every day. So think about how you use it and what it should look like versus what you are getting. When you work in whatever application you use and you have a thread or a whole bunch of messages that jump all over the place on a given topic, how would you search for those? Try searching for them in the platform you have and see if you can find them. And then you'll know how truly ineffective search terms are at providing context in these sorts of platforms. And if you're going to argue prejudice in a lack of production, the way that Valcrum did with the specific depth, use specific depositions and specific witnesses rather than a general complaint that in which context is missing. You won't win without a factual basis. That was something that Valcrum did very effectively here, and it is probably the basis of why they got additional context on the team's messages. Fifth, know the difference between asking for context and asking for reconstruction because courts treat them very differently. Valcrum asked for the entirety of the messages and a full rebuild into threads and got called too broad for it. It separately asked for unredacted copies of threads that already existed and it got exactly that. If Valcrum had been able to argue that it should get more context and threaded messages together, it might have gotten better evidence ultimately with what the court ordered. Know the platform's architecture well enough to argue it from either side of the table. If you're the producing party resisting reconstruction, be ready to explain factually and specifically how the platform stores and organizes your data. But if you're the requesting party hearing that explanation, don't just accept it. Know the platform yourself or bring in someone who does well enough to test whether the claim is actually complete. Nobody here appears to have pointed out that Microsoft's own e-discovery tools already have a built-in feature for reconstructing full Teams threads, and that's a gap that likely mattered. It might have resulted in Valcrum getting more than was awarded. Sixth, and this is the hard one because it's not really a lawyering failure so much as a genuinely difficult problem. It's incredibly hard for a requesting party to know in advance exactly how much context is enough. It's easy for me to sit here on the case of the week after the fact and point out things that could have been argued differently. But when you don't know your opponent's communication patterns until you're already looking at the data, asking for everything the way that Valcrum did avoids that guessing problem, but it's also exactly what gets called overbroad. A more workable approach is probably to request a sample. Agree with opposing counsel on a modest sample of custodians or date ranges, apply a proposed context window to it, either message count or day based, and use what comes back to calibrate before you commit it to it for the whole case. Then build in an explicit right to revisit that window for particular strings if the facts warrant it, with a meet and confer requirement written directly into the mechanism, so that reopening a string later is a conversation between counsel, not a new motion to compel. I'm not going to kid you. This is hard. This is a very hard part of e-discovery for every professional out there because people go back to threads in these conversations months later. So you need to make sure you are keeping the factual timeline in mind when you review productions and think about whether there could be additional data later that might impact your case. Think of it practically this way: if we have an issue that we discuss for three months, you know, there's there's let's say 10, 20, 30 messages going back on a particular issue in a thread between three people, and it gets dropped and nothing is really resolved on it. And a couple of months later, the issue gets picked back up. I just had this happen yesterday with development on something related to our software. And the issue gets picked back up, and you go back and you search for the thread and you're pulling those messages. So you have to know that the thread messages may not all be in a time-stamped fashion. They may not all be in a row. So date limiting on short-form messaging is difficult to do. Um, make sure that you're talking all about relevance, about threads, about the topics of threads, and then really push the other side to be able to create searches and understand how to find those threads. And they're gonna have to do that through a conversation with custodians, doing some searching, all kinds of stuff. It's the same way that we use to find out what are effective search terms when we're doing it the right way. You have to do the same thing with short form messaging. So essentially, what happens now in Discovery is that every single platform that handles data differently and that people communicate on differently has to have its own strategy for identifying information and collecting it and providing it. Keep that all in mind. Now, underneath all of these lessons is one more key. There's nothing in this record that suggests that the parties had an ESI protocol that addressed Teams messages specifically. And that's the same gap that Kim flagged on the other coast. Get Teams and Slack into your ESI protocol by name with an agreed context mechanism and a built-in path to renegotiate it before the platform becomes an 18-month fight instead of a settled term. We just talked about this in the context of generative AI with the difference between the Cerebrus protocol that was entered and our subsequent case that really fought about it. So it's really important that you be thinking about these things in advance, knowing and understanding the technology. Otherwise, you end up with these kinds of disputes and you don't walk away with the evidence you need. If you want to follow how courts keep answering this question differently, the instant messaging tag in Minerva 26 will keep you current as new decisions come in. You can also sort by Slack, Teams, or WhatsApp. And that's the fastest way to see the next formula that a court comes up with before it lands in your case. That's our case of the week for this week. And remember, if you want the ones we don't have time to cover here, find us on LinkedIn, Instagram, Facebook, and TikTok for the shorter takes in between. Thanks for listening, and I'll see you next week.