Litigators and corporate clients must stay up to date with new technologies and be aware the legal implications that are implicit with new technologies. Lawyers also have an ethical obligation to understand the benefits and risks associated with relevant technology in order to provide clients with competent representation. Ephemeral messaging, or self-destructing messaging, has recently stormed the legal world and raised many questions regarding compliance and corporate communication policies. Ephemeral messages are derived and shared on specific types communication platforms designed to make these “short lived” messages disappear upon reading. However, the applications used in ephemeral messaging vary in the level of protection and archiving they provide.
Litigators must familiarize themselves with these applications and inform clients about how this mode of communication can affect litigation. Recent case law addresses key issues that ephemeral messaging invokes in an eDiscovery context – the importance of not using these applications to circumvent compliance and how these applications can hinder opposing counsel from receiving potentially relevant evidence.
Herzig v. Arkansas Foundation for Medical Care Inc. (2019)
In this age discrimination case, the court ordered plaintiffs to produce relevant text messages in discovery. After fighting this and eventually producing the messages, plaintiffs began to communicate over an ephemeral messaging application called Signal and failed to disclose these communications. The plaintiffs programmed the application to automatically delete the messages after a short time period. The defendant found out about these destroyed messages during a deposition and subsequently asked the court for sanctions, such as an adverse inference or dismissal, based on spoliation of evidence.
Ephemeral Messaging Intent
The court found that plaintiffs acted in bad faith by using this type of application after litigation ensued and their communications were put at issue in discovery. The judge concluded that plaintiffs did this to intentionally hide their communication from defendant, which warranted sanctions. However, the judge did not discuss what type of sanctions were appropriate because he granted defendant’s motion for summary judgment.
The Herzig case instructs litigators to discuss with their clients the importance of not using ephemeral messaging to circumvent discovery compliance and the appearance of impropriety when using these platforms. Best practices include placing litigation holds during anticipated and ongoing litigation and making sure to supplement production with any relevant evidence. Using ephemeral messaging apps can prevent parties from meeting these obligations. The judge’s findings in this case indicate that future courts will likely impose severe sanctions for this type of behavior.
Waymo LLC v. Uber Technologies Inc. (2018)
This case is significant because it emphasizes the importance of preserving and safeguarding information relevant to pending litigation. In this case, Waymo alleged that Uber misappropriated trade secrets by using Waymo’s technology to create their own autonomous vehicles. During discovery, Waymo argued that Uber used the Wickr and Telegram apps to delete key discoverable information about stealing their trade secrets. The judge ruled that while Uber’s actions were not intentional, both parties could present evidence on this issue to the jury. Waymo could offer evidence illustrating that using these ephemeral messaging applications created gaps in their case since the apps deleted the communications that would have filled in the case gaps. Uber, in turn, could offer evidence showing that it used ephemeral messaging applications for legitimate business purposes. Since this case settled before verdict (with Uber giving Waymo a stake in the company’s ownership), these arguments were never tested out.
Importance of Preserving Evidence
Waymo reminds litigators the importance of preserving evidence so they do not deprive opposing counsel of evidence. Litigators must ask corporate clients about ephemeral messaging applications and direct them not to use these platforms as a means to delete potentially relevant communications when litigation is active or on the horizon. The Waymo case also stresses the importance of placing litigation holds and discussing these holds with clients as soon as possible. Best practices include remaining educated about ephemeral messaging applications and advising clients to refrain from discussing active litigation over ephemeral messaging applications.
Ephemeral messaging can offer organizations some benefits, like providing security for confidential communications that standard messaging applications fail to offer and the ability to decrease data retention. In turn, this can lower overall eDiscovery and data storage costs. However, recent case law emphasizes the importance of using this technology with caution. It is especially true when a party is clearly attempting to avoid discovery obligations by using ephemeral messaging applications. Additionally, this technology can create the appearance of impropriety and hinder evidence preservation.
Looking forward, lawyers should advise clients about the best practices noted above and determine the best way to mitigate the risks this technology presents including implementing corporate policies regarding ephemeral messaging applications appropriateness and providing training for employees. A corporation must also ensure that record retention policies factor in ephemeral messaging. Litigators should continue monitoring any new case law where the issues presented in Herzig and Waymo are discussed or seen through trial, taking note of whether other courts rule the same and how juries react.