Blink, And I’m Gone: E-Discovery Challenges and Considerations With Ephemeral Messaging
March 04, 2021
There is an ever-increasing volume of data generated by businesses. In an effort to reduce storage costs and ameliorate privacy concerns, companies have embraced ephemeral, or self-destructing messaging. And, while ephemeral messaging may solve one set of problems, it has the potential to create preservation issues when legal matters arise.
Recently, the Sedona Conference released the “Commentary on Ephemeral Messaging” (the “Commentary”). The Commentary analyzes the benefits and risks attendant to ephemeral messaging and provides several guidelines intended to tailor ephemeral messaging applications to comply with preservation obligations.
Although courts and attorneys are wary that the use of an ephemeral messaging application allows a party to conceal misconduct and may protect a party in a litigation setting, the authors of the Commentary opine that with the proper application, the benefits of ephemeral messaging are substantial. For example, there is significant business value attendant to ephemeral messaging, including the elimination of costly storage and retention of data that lacks any business value.
Additionally, many ephemeral messaging applications have legal-hold capabilities. And so, companies that opt to implement these applications can incorporate a customized legal hold policy that sets retention periods for documents, and allows one to disable the deletion functionality for communications related to a litigation hold. That said, while ephemeral messaging can save businesses from expenses associated with storage and data, and applications with legal hold capabilities exist, these applications leave many a litigator thinking the applications do little more than facilitate the deletion of otherwise relevant data.
Looking forward for those companies who will embrace ephemeral messaging applications, it is critical to implement best practices relating to document retention to mitigate any potential spoliation or preservation risks. These practices include, but are not limited to, (i) implementing clear and robust document retention policies; (ii) selecting an application that allows for legal-holds to be implemented and customized; (iii) training relevant employees on the proper uses of ephemeral messaging applications; and (iv) monitoring the use of the applications. Therefore, as noted by the Commentary, “[i]n the absence of contrary circumstances, courts may consider a litigant’s use of ephemeral messaging that accords with [the guidelines] as being reasonable and executed in good faith.”
*Thank you to second year associate, James Maguire in the Firm’s Uniondale office, for his research assistance related to today’s blog.