Is Use of Ephemeral Messaging Apps Before Litigation OK?: Information Governance Best Practices

This week’s post for IPRO’s blog discusses whether using ephemeral messaging apps BEFORE litigation is OK.

We know about once litigation commences.  In the past year and a half, I’ve written about at least three cases involving the use of ephemeral messaging apps during litigation.  As you can imagine, the ramifications for doing so in each one wasn’t great.  Here are those cases:

Doe v. Purdue, et al.: The individual plaintiff case, where the plaintiff produced a Snapchat download (to replace one with expired links) that was missing 11 Snapchat videos and images. The plaintiff claimed he deleted them off of his cell phone to free up space, not realizing that they would also be deleted from his Snapchat account and Snapchat servers entirely.  Indiana Magistrate Judge Joshua Kolar believed that was the reason for the deletion, but still sanctioned him to pay Defendants’ attorneys’ fees and costs associated with litigating the motion and also permitted the parties to present evidence to the jury concerning the loss of the Snapchat data.

Fed. Trade Comm’n v. Noland: When the defendants realized they were being investigated by the FTC, they started using ephemeral messaging platform Signal and encrypted email platform ProtonMail the very next day.  Defendant James Noland failed to disclose use of those platforms in his deposition and the individual defendants deleted the Signal app from their phones in coordinated fashion when forced to turn them over, making it impossible to recover any of the Signal messages.  Arizona District Judge Dominic Lanza sanctioned the defendants with an adverse inference instruction for their intent to deprive the FTC of that evidence.

WeRide Corp. v. Huang et al.: The defendants in this trade secret misappropriation case against former employees destroyed email by setting auto-delete for them to 90 days, admittedly wiped devices, failed to produce their source code and began communicating with DingTalk’s ephemeral messaging feature after the preliminary injunction issued.  As a result, California District Judge Edward Davila issued terminating sanctions against many of the defendants in the case.

But what about using before litigation commences?  Is it OK for an organization to use ephemeral messaging apps then?  You can find out my opinion about it on IPRO’s blog here. It’s just one more click! 😉

So, what do you think?  Do you think using ephemeral messaging apps before litigation is OK?  Please share any comments you might have or if you’d like to know more about a particular topic.

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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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