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.

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