By: Alex D’Aloisio
A basic and oft-recited conventional wisdom is to never put something in writing— nowadays, typing—that you do not want a record of. Written or typed statements are typically viewed as the holy grail of authenticity, and even in the legal field, certain agreements are required to be physically written out. However, with the advent of popular ephemeral messaging applications like Snapchat in 2011, this wisdom may need a modern adjustment.
Ephemeral messaging applications refer to programs that allow users to cause messages to disappear on the recipient’s device after a short duration. These self-deleting messages offer users the ability to express themselves via an impermanent medium. Applications such as Snapchat, Signal, Telegram, and several more have gained prominence due to the appeal of messaging without a permanent record. However, while ephemeral messaging may seem like the ideal way to transmit sensitive information that a user does not want a record of, there are legal considerations. Specifically, the duty to preserve evidence, derived from Federal Rule of Civil Procedure 37, could be cause for concern for some ephemeral messengers.
The legality of using ephemeral messaging in light of the duty to preserve evidence has recently been subject to a fair share of legal analysis. In February 2020, an ABA Practice Point article referenced Zubulake v. UBS Warburg. This case directed that a party is obligated to “suspend its routine document-retention-and-destruction policy” when litigation is reasonably anticipated or ongoing. Importantly, relevant electronically stored information such as texts or messages may be requested by a party in discovery per Federal Rule of Civil Procedure 26(b)(1). Pursuant to rule 34(2)(E)ii, this information must be produced in either the form it is ordinarily maintained in, or a reasonably useable one. When considered in conjunction, these rules and Zubulake indicate that use of ephemeral messaging when litigation is either ongoing or reasonably anticipated could cause a party to violate federal rules.
This idea was further fleshed out in a July 2019 case, Herzig v Arkansas Foundation for Medical Care, Inc. In that case, plaintiffs began communicating via the Signal ephemeral message app after they were already aware of their duty to preserve documents. The court ultimately found that the plaintiff’s actions here were sanctionable because it inferred they were intentionally deleting responsive communications that could have otherwise been subject to discovery. The court in Columbia Pictures, Inc. v. Bunell similarly held that when ephemeral data is relevant and there are no other available sources to obtain the information, a duty to preserve can be triggered. In that case, when the Defendant argued user data was inaccessible due to the “ephemeral” nature of Random Access Memory, the court sanctioned the Defendant for its failure to preserve and produce evidence, as well as intentional spoilation.
Waymo v. Uber Technologies, Inc., is perhaps the best example of a potentially problematic use of ephemeral messaging during pending litigation. Waymo alleged that Uber had misappropriated trade secrets in the creation of its autonomous vehicles, and in discovery, Waymo argued Uber used ephemeral messaging apps Wickr and Telegram when discussing said secrets. Unlike the cases discussed above, this case settled prior to the judge issuing a verdict, but it was determined that information on the matter could be brought before the court. While it is unclear whether Uber would have been subject to sanctions, it is clear that the duty to preserve is a legitimate issue in the context of ephemeral messaging.
One important consideration courts will look to when assessing the use of ephemeral messaging is whether it was done in bad faith. Bad faith ephemeral messaging typically looks as it did in Herzig, where the users intentionally send relevant self-deleting messages in order to avoid them coming out in discovery. However, even a lack of bad faith may not be enough to avoid sanctions. The court in Waymo, for example, found Uber’s use of ephemeral messages was not an intentional bad faith act, yet was still prepared to let Waymo’s argument proceed.
There are two important takeaways for lawyers dealing with relevant ephemeral messaging. The first may seem obvious, but could easily overlooked: it is important for an attorney to ask about the use of ephemeral data and demand an opposing party preserves such information. Second, attorneys should advise their clients to refrain from using ephemeral messaging regarding matters where litigation is ongoing or imminent. In the case of an organization or corporation, they should be advised to turn off self-deleting functions for internal ephemeral messaging should the need arise. This requires having the ability to manage any ephemeral messaging applications used in the workplace. As a rule of thumb, anyone involved in legal proceedings should be counseled not to discuss relevant matters via ephemeral messaging. At the core of the matter is really a modern spin on the old conventional wisdom: do not put anything in an ephemeral message that you do need a record of.
Student Bio: Alex is a second-year law student at Suffolk University Law School. He is a staffer on the Journal of High Technology Law.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
