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

Last Updated: July 20 2015
Article by Peter J. Isajiw and Anthony J. Del Giudice

Most Read Contributor in United States, October 2018

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.

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