ANALYSIS: What to Do When Discovery, Messaging Apps Collide

In today’s civil litigation, critical, relevant correspondence is as likely to have been sent via WhatsApp, Telegram, or Signal as it is through email, snail mail, or text messages. These ephemeral messaging applications can send messages that are quicker, end-to-end encrypted, and often—but not always—temporary.

Recent enforcement actions against Wall Street banks concerning their use of WhatsApp and other messaging apps—as well as banks’ attempts to police their own use of the technology—should serve as a cautionary tale for civil litigators, even for those whose clients are not subject to the same federal and state regulations.

Lawyers need to pay special attention to the preservation and recovery of ephemeral messages that may be subject to discovery in a potential legal action—especially when a client’s practices concerning preservation of their messages could lead them into a spoliation sanction.

Here are a few reminders to consider as you work with your client to determine what messaging data can and should be preserved.

Ensure That Existing Ephemeral Messages Are Preserved

Ephemeral data exists for a brief, temporary period. For example, some messaging apps are designed to limit the lifespan of messages by setting an automatic expiration time and making them unrecoverable. Random access memory (RAM) is another example. In situations where ephemeral data like RAM is difficult to preserve or is typically overwritten, court orders often include provisions limiting the discovery of data from ephemeral sources. However, unlike RAM, many messaging apps allow the user to disable their default auto-delete features. In these circumstances, litigants have a duty to preserve any communications that are material to a potential legal action.

While the consequences for failing to preserve messages may not involve the kind of punishing fines from the Securities and Exchange Commission that the Wall Street banks received, they may still make it tougher to successfully litigate a civil dispute. Courts have allowed parties to present evidence to a jury that an opposing party’s use of ephemeral messaging apps, despite the existence of a litigation hold, was expressly intended to eliminate relevant evidence. This kind of allegation can have a pivotal effect on the outcome of the case.

Work With Your Client’s IT Pros ASAP

Your client’s information technology professionals are instrumental to your efforts to preserve potentially discoverable communications, and they can help you understand your client’s messaging systems and applications. Meet with them as early as you can, and determine what communications can be preserved or recovered. In many cases, they can assist with suspending any auto-delete features that may be in place for messages and other electronic data.

Litigants’ affirmative steps to adjust auto-deletion settings have made the difference in cases where courts decided whether the loss of any communications was intentional and in bad faith. So be sure to act quickly to ensure that all relevant devices and systems are set to store communications involving the relevant personnel.

Assess Whether There Was a Pre-Existing Duty

Remember, the duty to preserve potentially relevant communications begins when a party to a case has either received notice that the messages are relevant to current litigation or should have known that the evidence may be relevant to future litigation. The exact date of when the duty arises is ultimately fact-specific. But in most cases, it’s triggered when a lawsuit is filed or when litigation is reasonably foreseeable. Your client may also be subject to a duty from other sources, such as a pre-existing agreement, statute, or regulation. So your next steps in recovering messages that were deleted should also include determining whether they were deleted prior to the existence of a duty to store them.

When consulting with your client to determine what steps, if any, are necessary to recover any lost messages, keep in mind that some of those messages may have been created and deleted well in advance of any requirement that they be stored in the first place. Under those circumstances, you don’t need to perform herculean efforts to recover those messages, and you should instead focus your efforts on those that were subject to a duty prior to their deletion.

Determine if Lost Messages Are Gone Forever

Many messaging apps claim that their messages disappear or auto-delete after they are viewed by the recipient. The truth is that the transitory nature of the messages these apps facilitate can be fairly nuanced. In many cases, even messages and associated metadata that are supposedly temporary can be archived or recovered.

The messaging app Signal, for example, says it allows users to manage the auto-deletion of messages by enabling or disabling the feature, or by setting it to delete messages only after a specific period. Its website tells users, however, that “if someone who receives a disappearing message really wants a record of it, they can always use another camera to take a photo of the screen before the message disappears.”

Even if the data was previously deleted from your client’s devices and IT systems, additional copies may reside with their vendors, consultants, attorneys, and colleagues.

The data in the possession of these third parties could also be considered within your client’s control if they have a legal right, authority, or practical ability to obtain it from a non-party to the litigation. Their duty to preserve extends to those copies as well. If so, you will need to act quickly to acquire them or ensure that they are stored for the duration of the litigation.

Bloomberg Law subscribers can find related content on our Discovery practice page and our Litigation Intelligence Center.

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