United States: This Message Will Self-Destruct. Or Will It?

2018 was the year of data privacy.  In April, Facebook CEO Mark Zuckerberg was called to testify before Congress to answer difficult questions about Facebook's protections for its user data.  In May, the European Union's General Data Protection Regulation made it known to the world that the privacy of its citizens was to be taken seriously and imposed severe consequences for those who failed to comply.  Across the United States, states like California and Colorado enacted sweeping data protection laws.  The message is clear: consumers want their privacy and governments are taking steps to protect them.

Technology companies have also answered the privacy call and ushered in the age of the "disappearing" messaging apps.  By offering encrypted or self-destructing messages, companies like Snapchat, Confide, Threema and others entice customers with assurances that their messages are truly private.  With declarations like "privacy is a universal human right"1 and "taking back our right to privacy", these "ephemeral" messaging applications seem to offer communication without consequence. 

But what happens when an individual's desire for privacy, even if well-intentioned, conflicts with duties a party owes to the courts?  How should courts balance the right of a party to discover evidence, and the corresponding duty of a party to preserve evidence, with the right to privacy and programs that are deliberately designed to destroy data?  Does a party have an obligation to stop using messaging applications if they are in litigation or expect to be sued?  By and large these questions remain unanswered, but the federal rules of procedure governing electronically stored information ("ESI") provide attorneys and their clients with the tools to navigate the challenging issues.

Wait, I need to review my client's Snapchat?

Maybe, maybe not.  The first step in civil discovery is the identification of relevant information.  Before you can evaluate the discovery of messaging applications in litigation, you must know the messages exist in the first place.  With potentially relevant information existing in so many places, it can be easy to overlook chat messages as a potential source of information.  A critical first step is to simply remember to ask your witnesses how they communicate and whether they use chat-style software applications.  Likewise, ask opposing counsel about chat messages during your initial discovery conference about ESI.  Failing to do so could mean omitting an important source of relevant information in the case.

When you have determined that your client (or the opposing party) uses chat messages, the next question is whether the messages being sent are actually relevant to the case.  Discovery is, of course, limited to relevant matters.  As interesting as the messages may be, you probably do not need to produce your client's grumpy cat memes or the latest viral video.  Evaluate whether the messages are likely to be relevant to the claims and defenses in your case and to be prepared to defend your decision.

If relevant messages exist, do I have to produce them?

Maybe, maybe not.  The scope of discovery in federal courts, and many state courts, is limited by proportionality.2  If you determine that your witnesses have used messaging applications to communicate about relevant information, you will need to figure out whether the messages still exist and how difficult it will be to search and produce them.  In determining whether messages must be produced, consider the amount in controversy in the case, the importance of the messages in resolving the issues, and whether the burden or expense of searching and producing the messages outweighs their likely benefit.3

Do not assume all messaging applications are alike.  While some applications rest their reputation on their ability to make messages "disappear", other chat-style applications can be preserve and produce messages with relative ease.  You will need to find out how your client's messaging platform works.  For example, does it "journal" or save a copy of all messages that are sent and received and, if so, for how long?  Can the preservation function be turned on or off and, if so, was it functioning during the relevant time?  Finally, does your client's software allow individual users to store their own "chat history" and if so, did they?  GSuite's Google Hangouts, as one example, offers individual users the ability to store their personal chat history in their Gmail account but also permits GSuite administrators to turn the function off.4  Office 365, as another example,  claims its eDiscovery capabilities include the ability to export preserved chat messages in Excel and other formats.5  Without understanding how these platforms work, it may look like messages have "disappeared," when copies are stored elsewhere.  It is therefore important to talk to the administering IT department or service provider to understand the particular program and determine whether relevant messages have been preserved.

A party is generally not required to produce ESI that it identifies as "not reasonably accessible" due to undue burden or cost.6  You may not be required to produce chat messages if you can establish that the collection and production of the messages would cause an undue burden – either because the information will have relatively little value or because collecting them would be extremely expensive, or both.  For example, messages that can only be recovered by a forensic expert (e.g., because they are "deleted" or saved only in "unallocated" space on a computer hard drive) may be too expensive to collect for a small matter.  In a corporate setting, if the messages can only be preserved on a company-wide basis, instead of user by user, you may have an objection that the expense of preserving and collecting the messages is not proportional to the needs of the case.  If the messages are expected to be of limited value to the case, or are duplicative of information more readily attainable, a court may find that the burden of producing them outweighs the benefit.

It is important to be prepared to articulate, with specificity, the burden you anticipate. Your argument should not simply assume all messages are always difficult to preserve and produce.  Nor should you underestimate the court's sophistication and ability to critically evaluate undue burden arguments in this age of rapidly expanding technology and ever-increasing concerns about privacy.   

Is my client permitted to use messaging apps after litigation has started?

Maybe, maybe not.  Several messaging applications by design, do not store messages or encrypt them so they cannot be recovered.  The messaging application Telegram allows users to set a "self-destruct timer" for messages and boasts it has "disclosed 0 bytes of user data to third parties, including governments."7  Often referred to as "ephemeral messaging apps" or "EMAs", these products claim to offer encrypted, self-destructing, messages that give users absolute privacy and an opportunity to "chat off the record."  But what happens when a litigation hold is in place or litigation is reasonably anticipated?  May an individual or company use, or continue to use, these confidential apps to discuss matters relevant to the case, knowing the messages may be lost forever?

Ephemeral data is defined as "data that exists for a very brief, temporary period and is transitory in nature, such as data stored in RAM."8  A number of thought leaders have suggested that such data, and other types of ESI, are presumptively "not reasonably accessible" and need not be produced in litigation.9  The 7th Circuit's Electronic Discovery Pilot Program, for example, lists several categories of ESI, including "ephemeral data" that are generally not discoverable in most cases.10  Yet, some courts have held that similar forms of automatically "deleted" data (including overwritten server logs and Random Access Memory) are not necessarily off-limits in litigation.11

These cases do not specifically address the new ephemeral messaging apps so there is an argument that the cases are distinguishable.  Ephemeral logging data in RAM, for example, is transitory because of the way computer systems are designed to operate efficiently, not because of an intentional desire to make communications difficult or impossible to recover.  Conversely, if two people send messages to one another on Threema knowing that the messages will be immediately and permanently destroyed after they are sent, is it subject to a different standard because of an intent to destroy the evidence?  Does excluding these platforms from discovery altogether invite discovery abuse? 

On the other hand, should these messages be treated differently than a conversation between two witnesses chatting in the office breakroom?  After all, we do not ask our clients to start recording their oral conversations after litigation has begun.  And much like a conversation, the content of ephemeral messages can be explored through proper examination of a witness.  Does the fact that the message was fixed in a tangible medium, even temporarily, make it somehow qualitatively different than a conversation and thus subject to a preservation obligation? 

The issue of ephemeral messaging apps in litigation made headlines in a recent case involving Uber and a subsidiary of Google's parent company.  In Waymo LLC v. Uber Technologies, Inc.,12 Waymo accused Uber of misappropriating trade secrets concerning self-driving vehicles.  Among several discovery disputes, Waymo claimed Uber's use of the messaging platform Wickr while litigation was pending was spoliation of evidence.  Regrettably, the court did not answer the question of whether use of an EMA is permissible after a litigation hold is in place.  The court did, however, note that Uber's use of ephemeral communications was relevant "as a possible explanation for why Waymo has failed to turn up more evidence of [trade secret] misappropriation" and ordered that Waymo would be permitted to present evidence and argument about Uber's use of EMAs.  Uber would likewise be able to present evidence that use of the EMA showed no wrongdoing.  Although the court did not expressly prohibit the post-litigation use of EMAs, it certainly signaled that parties do so at their own risk.

Get the answers by engaging the right team.

As more corporations and individuals employ these platforms and collaborative tools, we will see them more often at issue in litigation.  At the same time, our clients will face increased scrutiny on their treatment of private information.  To navigate this frequently changing landscape, it will be critical to engage competent counsel and technical assistance to ensure compliance with discovery obligations.

Footnotes

1 https://wickr.com/privacy/.

2 Fed. R. Civ. P. 26(b)(1).

3 Id.

4 https://support.google.com/a/answer/34169?hl=en.

5 https://docs.microsoft.com/en-us/MicrosoftTeams/security-compliance-overview#ediscovery; https://docs.microsoft.com/en-us/microsoftteams/ediscovery-investigation.

6 Fed. R. Civ. P. 26(b)(2)(b).

7 https://telegram.org/faq.

8 The Sedona Conference, Sedona Conference Glossary: E-Discovery and Digital Information Management (4th Ed.) (2014) (available at https://thesedonaconference.org).

9 Fed.R.Civ.P. 26(b)(2)(b).

10 https://www.discoverypilot.com/.

11 Columbia Pictures, Indus. v. Bunnell, No. CV 06-1093FMCJCX, 2007 WL 2080419 (C.D. Cal.); MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993).

12 No. C 17-00939 WHA, 2018 WL 646701, *21 (N.D. Cal).

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
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
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
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.

Disclaimer

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.

General

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