United States: Does Use Of Self-Destructing Messages Raise Spoliation Concerns?

Mark Cuban, entrepreneur and owner of the National Basketball Association's Dallas Mavericks, was charged with insider trading violations by the U.S. Securities and Exchange Commission in 2008. His defense against those allegations culminated in a 2013 trial, where Cuban was acquitted by a federal jury. Since the trial, he has publicly criticized the SEC's use of his electronic messages during the investigation, reportedly stating that "every message I sent, everything that I wrote, [the SEC] decided to create their own context."1 Turning his experience with the SEC into a business opportunity, Cuban created Cyber Dust, a mobile phone app that joins a growing number of apps that allow a user to send "self-destructing" messages. Cyber Dust reportedly markets itself as a product to be used by people "in a business with a lot of lawsuits" as a means to "save a lot of time and money because nothing sent or received on [Cyber Dust] is discoverable."2

Apps like Cyber Dust, Snapchat, Tiger- Text and others are no longer confined to users seeking to avoid embarrassing "selfies." Business users are increasingly choosing to communicate through self-destructing message apps instead of other forms of electronic communications such as text messages and email. As just one indication of the growing market for these apps, Snapchat recently obtained funding of $200 million in a deal that valued the company at $15 billion.3 These apps are being directly marketed to business people for their obvious benefits in protecting sensitive competitive information, trade secrets, and sensitive customer information, among others. These apps promise to provide users with the confidentiality of an oral conversation combined with the convenience and time shifting properties of electronic messaging. In the litigation context, however, these apps may also provide spoliation concerns for lawyers and their clients precisely because of these qualities.

Courts have not yet considered how to categorize self-destructing message apps, but the law's general distaste for missing records and the increasing popularity of self-destructing message apps makes a forthcoming confrontation likely. Indeed, Cyber Dust's marketing strategy tees the issue up by touting the app as designed to prevent the discovery of communications in litigation. In the short term, litigators will need to become knowledgeable of this emerging technology in order to effectively deal with clients or adversaries that use them. In the long run, perhaps it is time for the law to evolve in order to recognize the legitimacy of these modern communication methods.

Litigation Context

Litigators typically want to preserve all written communication and are inclined to be critical of self-destructing message apps. Because these apps potentially deprive attorneys of evidence to build a case, they also raise spoliation concerns. Spoliation, or "'the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation'"4 is a serious threat to litigants. Parties may face sanctions, adverse inferences, or other penalties if found to have committed spoliation by using these apps. A party's obligation to preserve evidence often arises at the start of a lawsuit but may arise even sooner if a party knows or "'should have known that the evidence may be relevant to future litigation.'"5 Accordingly, use of these apps when litigation is pending, threatened or reasonably anticipated may trigger spoliation concerns.

To date, no court has decided a spoliation claim involving self-destructing message apps. However, the legal treatment afforded other new communication methods may provide guidance on how courts will treat these apps. For example, social network users that have deleted potentially relevant content have been sanctioned for spoliation. In Gatto v. United Airlines, the plaintiff deactivated his Facebook account, causing the permanent deletion of account content 14 days later.6 In response to the plaintiff's destruction of evidence, the court gave the jury a "spoliation instruction," telling the jury that it may draw an adverse inference against the plaintiff for failing to preserve his Facebook account.7 In other words, the court told the jury to infer that the deleted information was deleted "'out of the well-founded fear that the contents would harm'" the plaintiff's case.8 Similarly, in Allied Concrete v. Lester, the Supreme Court of Virginia affirmed the sanctions imposed against plaintiff and his attorney for deleting content from plaintiff's Facebook page in addition to affirming the adverse inference instruction given to the jury relating to the deleted Facebook content.9 These are just a few examples of sanctions levied on litigants who deleted potentially relevant electronic communications in the litigation context. Additionally, bar associations have addressed social media content in this area. The Commercial and Federal Litigation Section of the New York State Bar Association's "Social Media Ethics Guidelines" advises that "[u]nless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve."10

Based on the above, it would seem that spoliation case law addressing the deletion of electronic communications—the exact purpose of apps like Cyber Dust, Snapchat, TigerText and others—raises such a significant risk of sanctions in the event those communications become relevant in a litigation context, that general commercial use of these types of apps would be unacceptable. But that conclusion is premature for several reasons.

First, each of the cases above arose in a context where there was a pre-existing duty to preserve documents because of a pending lawsuit. Accordingly, routine commercial use of such apps where there is no pending, threatened or foreseeable litigation would arguably not be in violation of a duty to preserve relevant documents (although it may run afoul of other statutory or regulatory document preservation requirements). Absent a duty to preserve, it may be difficult for an adversary to argue for sanctions after the commencement of litigation based on the routine commercial use of such apps prior to litigation.

Second, the intent of the parties in using a self-destructing messaging app on a regular basis, outside of the litigation context, may differ from the intent of someone deleting potentially relevant information after litigation is pending. There are several legitimate reasons to use self-destructing messaging apps in commercial communications, including without limitation, the protection of sensitive competitive or customer information. In some industries, such as health care, customers, clients or counterparties may significantly benefit from using such apps as a method of safeguarding confidential communication. Unlike the facts in the spoliation cases cited above, in such situations it may be difficult for an adversary to credibly argue that a party's use of these apps was intended to destroy relevant information in order to gain a litigation advantage, and therefore it may be difficult to support an argument for an adverse inference or a spoliation jury instruction during subsequent litigation.

Once litigation is pending, threatened or foreseeable, however, the analysis becomes more complicated because a duty to preserve all potentially relevant documents arises. Using these apps arguably creates a potentially relevant electronic document and then subsequently deletes it. Accordingly, in the near term, counsel and clients need to seriously reevaluate the risks associated with use of such apps once a preservation obligation arises.

In the long term, it may be time to consider an evolution of spoliation standards to accommodate the manner in which modern communications have evolved. The law has been adjusting to new means of communication long before the advent of email and social networks. At one point, the telephone was a new form of technology that perhaps caused an adjustment for 19th century litigators forced to build a case with fewer memos and letters than they had become accustomed to. A modern-day party's choice to use the phone as opposed to sending an email does not open it up to a spoliation violation. Absent a recorder, a phone call, like a self-destructing message, leaves no documentary evidence reflecting the content of the conversation. Perhaps the law should treat self-destructing message app communications like phone calls or face-to-face communications, not email communications. Otherwise, pending litigation, regardless of merit, could potentially cause an undue disruption in normal commercial communications that could last for several years, creating unintended inefficiencies in the commercial context.

Practice Tips

The frequently asked questions section of the Cyber Dust website indicates that when a message is deleted, "the message/image is gone forever and not stored anywhere. Ever!"11 Further, Cyber Dust advises that "[m]essages on our servers are never saved to disk, and are only stored in memory until they are delivered or expire."12 Similar apps make similar claims. For example, Confide assures users that it "employ[s] end-to-end encryption to ensure conversations remain confidential and are private to you" and that "[e]ven we at Confide cannot decrypt or see any messages."13 Despite these claims, some commentators have suggested that remnants of data relating to messages exchanged on self-destructing message apps may be retained and retrieved.14 As one real life example, reports indicated that in October 2014 hackers obtained thousands of Snapchat images that users thought were deleted, further crediting critics who claim that not all content related to self-destructing messages can be permanently deleted.15 Additionally, even if a message and its corresponding data have been fully removed from a smartphone, the messages may still exist on a third-party server or as screenshot on a recipient's phone.

Given the uncertainty concerning the ability to completely delete these messages, litigants should make use of all the tools at their disposal to gather them in discovery. For instance, interrogatories can be used to determine whether and how parties used such apps and to gather information that will inform the types of document requests that may yield relevant information. Document requests should include requests for self-destructing messaging app messages and other electronic information (e.g., date, time, and sender) regarding these messages. Subpoenas to third parties that may possess data relating to the messages should be considered. Depositions can be used to obtain testimony about both the use of such apps and the underlying facts that may have been contained in any messages, particularly when self-destructing message apps work as advertised and electronic records and data no longer exist.

Technology Outpacing The Law

Self-destructing messaging apps create new issues for attorneys advising clients on both document retention requirements and efforts to obtain discovery. The increasing popularity of these apps may bring the issues before courts soon. In the meantime, litigators should make themselves knowledgeable about the technology and proceed cautiously given the uncertain treatment courts may afford self-destructing message apps in addition to the uncertainty surrounding a message's longevity and obtainability. Courts and lawmakers should also carefully consider the ramifications of rigidly applying precedent that may be outdated in the context of the new realities of communication methods.

Footnotes

1. Bruno J. Navarro, "Mark Cuban takes on Snapchat with new messaging app," CNBC, Aug. 27, 2014, http://www.cnbc.com/id/101952557.

2. Aaron Timms, "Mark Cuban's Plan for Limiting Scope of Discovery in Lawsuits," Inst. Inv., Sept. 10, 2014, http://www.institutionalinvestor.com/article/3378986/banking-and-capital-markets-trading-and-technology/mark-cubans-plan-for-limiting-scope-of-discovery-in-lawsuits.html#.VJg65QAY.

3. Gillian Wong, "Alibaba Deal Values Snapchat at $15 Billion," Wall. St. J., March 12, 2015, http://www.wsj.com/article_email/alibaba-invests-in-snapchat-1426128199-lMyQjAxMTE1MDEyMjMxODI1Wj.

4. Zubulake v. UBS Warburg, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (quoting West v. Goodyear Tire & Rubber, 167 F.3d 776, 779 (2d Cir. 1999)).

5. Id. (quoting Fujitsu v. Fed. Exp., 247 F.3d 423, 436 (2d Cir. 2001)).

6. No. 10-cv-1090-ES-SCM, 2013 WL 1285285, at *2 (D.N.J. March 25, 2013).

7. Id. at *3, *5.

8. Id. at *3 (quoting Scott v. IBM, 196 F.R.D. 223, 248 (D.N.J. 2000)).

9. 736 S.E.2d 699, 703 (Va. 2013).

10. N.Y.S. Bar Ass'n, Com. & Fed. Litig. Sec., Social Media Ethics Guidelines 11 (March 18, 2014), http://www.nysba.org/Sections/Commercial_Federal_Litigation/Com_Fed_PDFS/Social_Media_Ethics_Guidelines.html.

11. Cyber Dust's responses to frequently asked questions: Why does Cyber Dust slow down?, http://cyberdust.com/faqs.html.

12. Cyber Dust's responses to frequently asked questions: When exactly do my messages disappear?, http://cyberdust.com/faqs.html.

13. Confide's responses to frequently asked questions: How secure is this and do messages really disappear?, https://getconfide.com/faq.

14. See, e.g., Sophie Curtis, "Is Snapchat as private as it seems?," The Telegraph, March 12, 2014, http://www.telegraph.co.uk/technology/internet-security/10692856/Is-Snapchat-as-private-as-it-seems.html.

15. "Hackers get their hands on 100K 'deleted' Snapchat images," FoxNews.com, Oct. 12, 2014, http://www.foxnews.com/tech/2014/10/12/hackers-eye-release-100k-deleted-snapchat-images/.

Originally published by New York Law Journal, April 13, 2015.

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.