United States: Issues With Self-Destructing Messages In The Workplace

Last Updated: March 12 2014
Article by Peter J. Isajiw and John C. Vázquez

Inside many businesses, emails and electronic communications are the primary—and sometimes only— way people communicate. As one federal judge noted, email has not only replaced paper memos and letters, but "many informal messages that were previously relayed by telephone or at the water cooler are now sent via email."1

But the convenience of electronic communication comes with some costs: Email's persistence and ease of duplication mean that once a message has been sent, the author loses all control over it. Emails can be easily distributed well beyond their intended audience, and often re-emerge to the detriment of the sender in litigation or other disputes. Snapchat, an app that allows users to send picture and video messages that "self-destruct" after viewing, has achieved a $2 billion valuation by offering at least a partial solution to these problems. Encouraged by Snapchat's success, several recently launched apps aim to bring "self-destructing" messages to a more business-minded user demographic.

For example, an app called TigerText markets itself as an enterprise solution for complying with health care confidentiality and other privacy regulations, while promoters of the app Confide describe it as the "Snapchat of the C-suite." The need for confidential communication regarding sensitive business issues is common among busy executives and professionals, but trying to coordinate schedules for phone calls or other real-time meetings can be challenging, and in today's globalized marketplace this difficulty is often compounded by differences of time zone and geography. At the same time, the ubiquity of mobile devices and our "always-on" culture cause people to be less tolerant of communication delays. But despite the inconvenience and lost productivity involved in arranging real-time talks, it is wise to be cautious about discussing sensitive topics by email because of the risk such communications might find their way into the possession of a litigation adversary, competitor, or other hostile party. The ability to send secure messages that cannot be saved, stored, or forwarded could foster productivity by encouraging frank and timely communications, freeing people from both the need to coordinate real-time conversations and the fear that messages will fall into unwanted hands. As the draw of self-destructing messaging apps for busy professionals is likely to be strong, firms and their legal advisors need to be proactive in contemplating how such apps might be used in the workplace.

These apps raise a number of potential compliance and legal concerns. The fundamental problem with these self-destructing message systems is that users may view communications sent through them as unrecorded, similar to a phone call or face-to-face talk, but this perception is not correct. A communication that is quickly or automatically deleted is not the same as one that was never recorded. Sending communications through a system that makes deletion automatic (and perhaps irreversible) is not likely to excuse noncompliance with any legal or ethical obligation to preserve documents. Lawyers and compliance professionals will need to be vigilant to ensure that corporate personnel are not inadvertently violating document retention obligations by using these services, thereby exposing themselves or their employers to sanctions.

One potential concern is the use of these apps by companies in regulated industries, such as financial services firms, companies subject to Sarbanes-Oxley, or health care organizations, where their use may violate regulatory record retention obligations. For example, regulated financial entities are required to retain broad categories of internal and external communications, including electronic communications, and regulators have been aggressive in enforcing these requirements. In December 2013, the Financial Industry Regulatory Authority (FINRA) fined one member bank $3.75 million for failing to maintain emails, instant messages, and other electronic documents in a format that would prevent their deletion or alteration.2 The extensive recordkeeping obligations imposed by financial regulators make it nearly impossible for such organizations to permit the use of any communication systems that cannot be archived, so these firms may need to augment their policies, and perhaps even implement technological restrictions, to prevent the use of self-destructing messaging systems by their employees.

Companies subject to Securities and Exchange Commission (SEC) rules promulgated under Sarbanes-Oxley may also be somewhat restricted in the use of these messaging apps. These rules generally require companies to retain records relevant to an audit or review for seven years after its completion. This recordkeeping requirement applies broadly to include any documents that form the basis of the audit or review, including all "memoranda, correspondence, communications, other documents, and records" that are "created, sent or received in connection with the audit or review" and "contain conclusions, opinions, analyses, or financial data related to the audit or review."3 Sarbanes-Oxley also created severe criminal penalties for the destruction of, or failure to preserve, certain documents. The act provides for up to 10 years' imprisonment for knowingly violating its audit record retention requirements, and up to 20 years for anyone who should "corruptly alter, destroy, mutilate, or conceal documents with the intent to impair their integrity or availability in an official proceeding" or "knowingly destroy, alter, or falsify documents and other records in federal investigations and bankruptcy."4 Accordingly, companies and their auditors need to consider policies or technological restrictions that limit the ability to use self-deleting messaging systems in these circumstances.

In contrast to the regulatory trend toward greater transparency in financial markets, health care industry regulations emphasize patient privacy and data security. Laws such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Clinical and Economic Health Act (HITECH), as well as professional ethical rules, require health care organizations to safeguard the confidentiality of patient information, and threaten severe penalties for noncompliance.5 For example, in August 2013, a managed care organization in New York paid the Department of Health and Human Service (HHS) more than $1.2 million dollars to settle allegations that it violated its HIPAA obligations to safeguard data when it returned several photocopiers to a leasing agent without erasing the data contained on the copiers' hard drives.6 The strict privacy requirements imposed on the health care facilities and providers may make self-deleting messages a potentially attractive industry tool. Timely communication among medical providers quite literally can be a matter of life and death, but even in the most urgent of circumstances, patient information must be kept from unauthorized or accidental disclosure. TigerText has attracted considerable attention from media and investors for its success in marketing its messaging service to hospitals and medical practices, and some industry watchers have predicted that TigerText and other apps like it are poised to become valuable tools to the $3 trillion U.S. health care industry.7

As it would be impossible to list every regulatory requirement that might be implicated by the use of self-deleting messengers, companies will need to conduct their own individual analyses and risk assessments. Such assessments should also look beyond regulatory obligations, and determine how using these apps fits into those companies' document retention policies.

Document retention policies generally dictate how long records must be retained, setting a point at which, absent exceptional circumstances, records should be destroyed so as to avoid the cost and litigation risk of storing records that no longer serve a clear legal or business purpose. When documents are unavailable as a result of a comprehensive and consistently-enforced retention policy, courts generally accept this as a defense to claims of spoliation. As the U.S. Court of Appeals for the Fifth Circuit noted,

[T]here is nothing improper about following a document retention policy when there is no threat of an official investigation, even though one purpose of such a policy may be to withhold documents from unknown, future litigation.8

This same motivation to keep documents that might be damaging or prone to misinterpretation out of the hands of litigation adversaries is a strong enticement to use self-deleting messaging apps. However, while courts universally recognize the business need to destroy documents as a matter of course, "[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."9 This standard, articulated in Zublake v. UBS Warburg, has been widely adopted by state and federal courts, and it largely mirrors the guidelines of the Sedona Conference, which states that the obligation to preserve documents arises "at the point in time when litigation is reasonably anticipated whether the organization is the initiator or the target of the litigation."10 Failure to preserve evidence as required can result in sanctions, ranging from monetary fines to adverse inference jury instructions or even termination of the litigation.11

The obligation to issue a litigation hold and to preserve potential evidence conflicts with the very self-deleting nature that makes the use of such apps appealing, as such messages cannot generally be retained or retransmitted. Unfortunately, there is little guidance as to how courts will treat the use of self-deleting messaging apps in the litigation hold context. On one hand, the obligation to prevent electronic records from being deleted pending litigation is not absolute. Federal Rule of Civil Procedure 37(e) provides that courts generally should not sanction parties for "failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." Similarly, the Sedona Principles urge that the obligation to preserve relevant evidence "must be balanced against the right of a party to continue to manage its electronic information in the best interest of the enterprise, even though some electronic information is necessarily overwritten on a routine basis by various computer systems," and recommend that "if such overwriting is incidental to the operation of the systems as opposed to a deliberate attempt to destroy evidence in anticipation of or in connection with an investigation or litigation it should be permitted to continue after the commencement of litigation."12

On the other hand, despite the balancing approach advocated by Rule 37(e), courts are hostile toward litigants who are perceived as skirting their discovery obligations or destroying evidence by cleverly engineering information systems, even if those systems superficially comply with case law and consensus guidelines. In a 2009 case, the Supreme Court Commercial Division imposed adverse inferences on a defendant corporation for spoliation because it structured its email system to limit each user to only 200 megabytes of storage.13 Once reached, this limit prevented users from receiving additional email until they manually deleted messages. The court reasoned that, while employees were deleting emails "in the ordinary course of business," it nonetheless constituted gross negligence for the company to fail to ensure that employees would not delete relevant evidence during the pendency of litigation. The use of self-deleting messenger apps for communications relevant to pending or anticipated litigation may raise similar concerns.

The tolerance a court may demonstrate for a party's inability to preserve or produce communications sent using a self-deleting messaging service may vary based on the jurisdiction, the foreseeability of litigation, and the court's assessment of the party's intent in failing to preserve the potential evidence. Proposed revisions to Rule 37(e), if adopted, would require federal courts to consider the reasonableness of efforts to preserve records, the proportionality of any preservation efforts to the litigation, the extent to which parties were on notice of likely litigation, and the reasonableness and clarity of requests by adversaries that such records be preserved.14 While this amendment may add uniformity in the federal courts' analysis of document retention obligations, it does not clarify how reasonable a court may find the use of self-deleting messages in any given scenario. Accordingly, the most conservative practice would be to suspend the use of such services for communications subject to a litigation hold.

These self-deleting messenger apps, and the legal issues they present, are an example of how technology often outpaces the law. The use of instant, private, and secure electronic communications in the health care industry would be generally consistent with the regulatory goals, as well as potentially life-saving—and this is just one example of the business and social advantages these apps may offer. However, the rules relating to the preservation and production of evidence are founded upon decades of experience with paper-based records, making predictions about a court's potential view of these applications in regulatory or litigation contexts difficult. Judicial rules conferences, and professional groups like the Sedona Conference, have labored with much success to adapt traditional evidentiary principles to a digital era, but, as is demonstrated with the case of self-deleting messages, the technology nearly always moves more quickly. Self-deleting message services may present an opportunity to reconsider the sustainability of continued application of rules and principles held over from the days of paper, and the degree to which business practices should be dictated by the looming specter of future litigation. Perhaps a record that feels more like an oral communication to the user should be treated more like an oral communication by the courts. But until there is such a reconsideration, it will be left to practitioners to assist businesses in identifying practices that minimize the simultaneous legal risks of both the over-and under-preservation of records, and to establish records retention policies that are defensible in later litigation.

Reprinted with permission from the March 10, 2014 edition of the NEW YORK LAW JOURNAL


1. Byers v. Illinois State Police, 53 Fed. R. Serv. 3d 740 (N.D. Ill. May 31, 2002).

2. See FINRA News Release, Dec. 26, 2013, https://www.finra. org/Newsroom/NewsReleases/2013/P412646.

3. See 18 U.S.C. §1520(a)(2); 17 C.F.R. §210.2-06(a).

4. 8 U.S.C. §§1512(c), 1519, and 1520(b).

5. See, e.g., 42 U.S.C. §§1302(a), 17931; 42 U.S.C. §1320d– 1320d(9); 45 C.F.R. Parts 160 and 164.

6. U.S. Dep't of Health and Human Svc., "News Release: HHS settles with health plan in photocopier breach case;,"Aug. 14, 2013, http://www.hhs.gov/news/press/2013pres/08/20130814a.html.

7. Heather R. Huhman, Business Insider, "5 Companies That Transformed Enterprise Communication in 2013," Dec. 3 2013, http://www.businessinsider.com/5-companies-that-transformed-enterprise-communication-in-2013-2013-12.

8. See, e.g., Arthur Andersen v. United States, 374 F.3d 281, 297 (5th Cir. 2004) rev'd on other grounds, 544 U.S. 696 (2005).

9. Zubulake v. UBS Warburg, 220 F.R.D. 212, 218 (S.D.N.Y. 2003).

10. See, e.g., VOOM HD Holdings v. EchoStar Satellite, 939 N.Y.S.2d 321, 324 (1st Dep't 2012); The Sedona Conference, "Commentary on Legal Holds: The Trigger and the Process," 11 Sedona Conf. J. 265, 267 (Fall 2010).

11. See Zubulake, 229 F.R.D. at 437 (instructing the jury that it could infer destroyed evidence was adverse to the defendant); U.S. v Philip Morris USA, 327 F. Supp. 2d 21, 26 (D.D.C. 2004) (fining defendants $2.75 million for the destruction of evidence); Telectron v. Overhead Door, 116 F.R.D. 107, 130 (S.D. Fla. 1987) (entering default judgment against defendant for willful and bad faith document destruction).

12. The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, Comment 5.a (July 2005).

13. Einstein v. 357 LLC, No. 604199/07, 2009 WL 4543044 (Sup. Ct. N.Y. Cnty., Nov. 12, 2009).

14. See Comm. on Rules of Practice and Procedure, Report of Comm. on Rules of Practice and Procedure 104 (Jan. 3-4, 2013).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions