Exhibit 1 

Exhibit 1

 

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Carrie M. Francis (020453)

Stefan M. Palys (024752)

Michael Vincent (029864)

STINSON LEONARD STREET LLP

1850 North Central Avenue, Suite 2100

Phoenix, Arizona 85004-4584

Tel: (602) 279-1600

Fax: (602) 240-6925

Email: carrie.francis@stinson.com stefan.palys@stinson.com michael.vincent@stinson.com

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Jeremy Thacker, No. 2:18-cv-00063-PHX-DGC

DECLARATION OF GARY 

FITZGERALD

Plaintiff,

v.

GPS Insight, LLC; Robert J. Donat, Individually and as Trustee of The

Robert Donat Living Trust Dated April

19, 2017;

Defendants.

I, Gary Fitzgerald, declare as follows:

1. I am an adult and am competent to testify. If called to testify at trial, I 

would testify consistently with this declaration. 

2. I make this declaration based upon my personal knowledge.

3. I am the Chief Executive Officer and Chief Technology Officer for GPS

Insight, LLC (“GPSI”). 

4. GPSI uses Slack, which is a cloud-based instant messaging platform for 

electronic communications among GPSI employees.

5. At all times prior to and including March 2017, GPSI’s Slack service plan 

did not provide GPSI with the ability to retrieve past Slack messages. In other words, 

the messages were not saved on GPSI’s system.

6. During this litigation, after Plaintiff complained about Slack messages, 

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GPSI spent approximately $6,000 to attempt to resolve one of Plaintiff’s discovery 

issues by upgrading to a more expensive Slack plan that allowed for retrieval of past 

messages.

7. After GPSI upgraded its Slack plan, GPSI was able to download copies of 

those Slack messages that had been maintained on the Slack system, and it produced the 

same. However, Slack could only download copies of what already existed—in other 

words, because Plaintiff had already deleted his own Slack messages, those deleted 

messages were not recoverable because they no longer existed on the Slack system.

8. I have attempted, on behalf of GPSI, to obtain copies of the Slack 

messages that Plaintiff deleted on or about February/March 2017. Those messages are 

not available because Plaintiff’s actions permanently deleted them from the Slack 

system.

9. Slack organizes messages by folders, with each folder referencing a 

recipient/sender pair. For example, there would be one folder for Slack messages 

between Plaintiff and Kristin Lisson (“Lisson”) and one folder for messages between 

Plaintiff and Robert Dennis (“Dennis”).

10. When Plaintiff deleted his Slack messages between himself and Lisson, 

and himself and Dennis, he was unable to delete the corresponding folders, which were 

maintained and managed by the Slack system. The Slack system would not allow 

Plaintiff to delete the folders, only the content within the folders.

11. I have looked at the folders in the Slack system for Plaintiff/Lisson 

messages and for Plaintiff/Dennis messages and those folders are empty.

12. The now-empty folders for Plaintiff/Lisson and Plaintiff/Dennis are 

evidence that there were Slack communications between Plaintiff and Lisson and 

Dennis, and that Plaintiff deleted those messages.

13. There are no “compliance records” for GPSI’s Slack message archive that 

would enable Defendants to learn which Slack messages Plaintiff deleted. At the time 

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that Plaintiff deleted his Slack messages, GPSI’s Slack plan did not allow for the 

retrieval of past messages. 

14. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the 

laws of the United States of America that the foregoing is true and correct. 

EXECUTED this __ day of December, 2019. 

By: 

Gary Fitzgerald

 

20th

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