This Blog Post Will Not Be Automatically Deleted, But Your Instant Message Might Be: eDiscovery Trends
The sources of electronically stored information (ESI) are more varied than ever. Now, they routinely include text messages and messages from instant messaging apps. But, depending on the instant message app – or the archive option for any messaging app, that ESI might not be available at litigation time.
In LegalTech® News (This Article Will Self-Destruct: Behind Ephemeral Messaging’s In-House Rise, written by Rhys Dipshan), the author notes that the rise of ephemeral messaging, self-erasing communications “have gone from spy movie lore to everyday consumer technology.” That technology may be welcomed by privacy advocates, but not so much by those responsible for compliance, investigations and litigation efforts. And, while ephemeral messaging was once only the focus of a handful of messaging apps, they’re now being offered by widely used services like Gmail and Facebook.
Remember the Waymo v. Uber case? In that case, Waymo sought sanctions for Uber’s use of the ephemeral messaging app Wickr for communications, but California District Judge William Alsup ruled that Waymo could inform the jury of the situation and have them reach their own conclusions – in part, because Waymo also disclosed it used ephemeral messaging apps in-house as well.
Ephemeral messaging apps are becoming more prevalent – and they’re even becoming more accepted from a regulatory standpoint. In April 2019, for example, the Department of Justice (DOJ) rescinded a policy requiring companies to restrict their employees’ use of ephemeral messaging apps if they wanted credit for cooperating with DOJ enforcement actions under the Foreign Corrupt Practices Act. The new DOJ policy now only requires companies to implement “appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms.”
Gareth Evans, eDiscovery expert and partner at Redgrave, noted that one of the most fundamental uses for ephemeral messaging is to help organizations more easily delete data they shouldn’t be keeping in the first place.
“Simply, if there is no business purpose or business need for retaining the messaging, if there is no legal requirement to keep it, that in itself is a good reason not to be keeping it. And by keeping communications [you don’t need], you run certain risks.”
That’s great when there isn’t a duty to preserve (i.e., when you anticipate litigation). But, what about when that duty exists?
For years, we’ve discussed the importance of suspending auto delete programs when anticipating litigation and we’ve discussed cases where failure to do so can lead to sanctions (like this one and this one). Historically, those auto delete programs have been associated with email, but they are becoming more associated with text and other messaging apps, as well. And, it’s important to note that while some messaging apps are ephemeral by default, most (if not all) messaging apps can be set to automatically delete messages after a period of time – including text messaging apps like the text message app for iPhones, which is set to retain messages “forever” by default, but can be changed to a 1 year or even 30 day retention period. That’s why it’s become more important than ever to address automatic deletion for text and other messaging apps when litigation is anticipated to avoid potential spoliation.
So, what do you think? Does your organization use ephemeral messaging apps? If so, how does it handle the use of those apps during litigation? As always, please share any comments you might have or if you’d like to know more about a particular topic.
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