Lately, a number of mobile apps have been developed and released that are aimed at protecting users' privacy by instantly deleting conversations, pictures, and other content after its initial viewing.  Snapchat is the most widely known representative example of these apps, which essentially function by allowing one user to send another user pictures and/or text, giving the recipient a set amount of time to view the contents of the message, and then deleting that content, purportedly permanently.

There has been a healthy amount of debate lately over whether these apps are truly "private."   More importantly for those involved in litigation or issues that could potentially lead to litigation is the concern over spoliation of otherwise discoverable information.  The risk may seem obvious to lawyers, but can be less apparent to those employees or other users who view these types of apps as a foolproof safeguard to conversations that they wish to remain confidential.  The concern, of course, is that the use of an app that automatically destroys relevant information upon receipt while litigation is ongoing or anticipated is, at its core, spoliation, with no real means of recovery.

On the other hand, could it be argued that the mere usage of this app could not possibly be held to be spoliation any more than the use of spoken word?  Practically speaking, there is no affirmative act of deletion by a user – only the decision to use a mode of communication that has deletion as its default.  Such an argument seems tenuous but may develop as the use of this technology evolves.

Ultimately, the practical realities surrounding the usage of these apps should always be taken into consideration.  Users should recognize that nothing is ever truly private, and that even when there is an expectation of privacy, it only takes one screenshot from a Snapchat to lead an astute attorney down the rabbit hole to spoliation-land, spinning together a complex story that critical information was lost because a user opted to use one of these apps in lieu of traditional text messaging.  In addition, users should be aware that Snapchat's own privacy policy states that it cannot guarantee that data will be deleted within a specific timeframe or that it will not continue to reside in backup, and that "there may be ways to access messages while still in temporary storage on recipients' devices or, forensically, even after they are deleted."

User beware.

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