Corporations and their outside counsel increasingly must decide whether to allow the use of apps that send disappearing messages, because these apps can ensnare companies in e-discovery disputes.
Several lawyers at a Washington conference raised the issue, which has become more prevalent as “ephemeral” messaging apps such as Snapchat, Wickr, WhatsApp, and Signal grow in popularity. These apps hide or auto-delete text messages and images after they are sent or accessed.
Attorneys at the Advanced eDiscovery Institute sponsored by Georgetown Law’s continuing legal education division, said these apps pose issues with the “duty to preserve” communications that could become evidence in legal proceedings.
The use of of ephemeral messaging has become a battleground in e-discovery disputes because potentially key communications often disappear by design—causing some judges to conclude that companies may be using the apps to hide potentially damaging behavior or actions.
“I warn clients that if it is clear those tools have been used, and the communications are not available, the court may well assume the worst of those communications,” said Gilbert Keteltas, a Washington-based BakerHostetler partner who heads the firm’s commercial litigation team and spoke at the conference, which ran Nov. 21 and 22.
Keteltas suggested that corporations should make it clear to employees that “these are not company-supported tools. The use of these tools for business purposes could create difficulties and complexities.”
Ephemeral message apps are growing in use, especially among millennials, because they’re faster than standard email and “just tremendously efficient,” said Jason Baron, who is of counsel with the Washington office of Drinker Biddle & Reath and an e-document preservation expert.
“There is a lure to this technology,” he said.
One relatively recent court case made it clear that judges can easily become concerned with the use of ephemeral messaging apps.
In a high-stakes Silicon Valley trade secret theft case, Google’s self-driving car project, Waymo, found during discovery that competitor Uber Technologies Inc. had told its employees to use the ephemeral messaging app Wickr to discuss efforts to develop self-driving vehicles. This was despite Uber by that point having a “reasonable” expectation that Google would sue and bring allegations that Uber tried to steal Waymo’s self-driving car tech.
Uber’s own statements should have made it clear that they knew the likelihood of litigation, U.S. District Court Judge William Alsup for the Northern District of California found. He held that Uber had a legal responsibility to preserve electronically sensitive information, though he did not state definitively that Uber engaged in spoliation by neglecting to produce evidence in their possession or control.
The case settled in February of 2018.
As social media use proliferates generally, digital data use is under judicial scrutiny in different types of litigation, including First Amendment cases, said New York Times Deputy General Counsel David McCraw, the conference keynote speaker.
“Data is intended to solve problems,” said McCraw. “Now we’re being faced with the question: What do you do when data is the problem?”
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