Written by Doug Austin, Editor of eDiscovery Today
In the past year and a half, I’ve written about at least three cases involving the use of ephemeral messaging apps during litigation. As you can imagine, the ramifications for doing so weren’t great. But what about using ephemeral messaging apps before litigation – is that OK? Let’s take a look.
Three Cases Involving Ephemeral Messaging Apps
First, here are the three cases. Two involved organizations that began using ephemeral messaging after litigation commenced and one involved an individual plaintiff that deleted videos and images off his phone, claiming he didn’t realize that they would be deleted from the servers as well.
Doe v. Purdue, et al.: The individual plaintiff case, where the plaintiff produced a Snapchat download (to replace one with expired links) that was missing 11 Snapchat videos and images. The plaintiff claimed he deleted them off of his cell phone to free up space, not realizing that they would also be deleted from his Snapchat account and Snapchat servers entirely. Indiana Magistrate Judge Joshua Kolar believed that was the reason for the deletion, but still sanctioned him to pay Defendants’ attorneys’ fees and costs associated with litigating the motion and also permitted the parties to present evidence to the jury concerning the loss of the Snapchat data.
Fed. Trade Comm’n v. Noland: When the defendants realized they were being investigated by the FTC, they started using the ephemeral messaging platform Signal and encrypted email platform ProtonMail the very next day. Defendant James Noland failed to disclose use of those platforms in his deposition and the individual defendants deleted the Signal app from their phones in coordinated fashion when forced to turn them over, making it impossible to recover any of the Signal messages. Arizona District Judge Dominic Lanza sanctioned the defendants with an adverse inference instruction for their intent to deprive the FTC of that evidence.
WeRide Corp. v. Huang et al.: The defendants in this trade secret misappropriation case against former employees destroyed email by setting auto-delete for them to 90 days, admittedly wiped devices, failed to produce their source code, and began communicating with DingTalk’s ephemeral messaging feature after the preliminary injunction issued. As a result, California District Judge Edward Davila issued terminating sanctions against many of the defendants in the case.
What About Use of Ephemeral Messaging Apps Before Litigation?
Each above case involved the use of ephemeral messaging apps after litigation commenced. But what about before litigation commences? Is it OK for an organization to use apps like Snapchat, Signal or DingTalk (with ephemeral messaging turned on) then?
Technically, yes, but practically, no. Here are two reasons why it’s not recommended:
- Collaboration App Data Has Many Downstream Business Uses and Benefits: Snapchat, Signal, and DingTalk are chat and collaboration apps just like Slack and Teams are. Many organizations benefit from the data and communications that come from collaboration, especially these days with so many distributed workforces. An ephemeral messaging app imposes an arbitrary auto-deletion of data from the app, which means that organizations don’t get continued benefit of that information during the normal course of business – before litigation happens. Your organization needs that data for a reason – at least until its value is diminished.
- When Litigation DOES Happen, You Need to Stop Using Ephemeral Messaging: Seeing what happened in the cases above, do you think it’s a good idea to keep using ephemeral messaging apps once the duty to preserve commences? It certainly isn’t, and doing so can result in sanctions. So, if you use Snapchat, Signal, DingTalk, or any other ephemeral messaging app, your organization would need to switch to a chat and collaboration app that is not ephemeral once litigation happens. Who wants to learn a new app just because a litigation case is filed?
Document Retention and Destruction Policy
A better approach is to have a sound document retention and destruction policy, with the ability to leverage technology to help: 1) identify and remove redundant, obsolete, and trivial (ROT) data from your organization, 2) identify sensitive company and personal information (so that it can be protected), and 3) support the ability to search datastores in-place when litigation does happen, so that only potentially responsive data is collected for upstream discovery processes and tasks.
Doing so enables your organization to “control its own destiny” when it comes to the data it manages, not rely on arbitrary deletion of data through an ephemeral messaging app.
Ephemeral apps like Snapchat, Signal, or DingTalk may be great for individuals to use when communicating with their friends, but there are several downsides for organizations to use them as a matter of course in their business practices, especially if you can’t turn off the auto-delete capability. Unless your organization is trying to hide evidence in litigation – that’s not YOUR organization, is it? – stay away from the ephemeral messaging apps for general collaboration.
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