Ephemeral messaging is short-lived, yet the data preservation and regulatory obligations remain.
Ephemeral messaging apps – like WhatsApp and SnapChat – are a form of digital communication available for a limited time and then deleted. The two key characteristics of ephemeral messaging are: (1) automated deletion of message content for both the sender and the receiver and (2) end-to-end encryption which enhances privacy by making it more difficult for hackers and others to read the encrypted data while it is in transition between devices.
The three degrees of ephemerality in messaging apps are:
- Pure which involves the permanent and automated deletion of messages;
- Quasi which permits preservation of messages in certain circumstances; and
- Non-ephemeral in which messages usually remain on a source (such as a server) and may not include end-to-end encryption.
The benefits of ephemeral messaging include:
- Information governance: Data storage and records preservation/management are reduced by ephemeral messaging.
- Legal compliance: Encryption and automatic deletion of personal data help reduce exposure if a data breach occurs.
- Data security: Even if a mobile device is lost, the automatic deletion of data will likely protect against hackers.
The legal risks of ephemeral messaging include: (1) complying with subpoenas and (2) preservation of data when litigation is “reasonably anticipated”.
Subpoenas often define documents and communications broadly to capture all communications, including ephemeral messaging. Thus, the failure to preserve documents may result in an inability to fully comply with a subpoena and/or a criminal exposure, particularly if the subpoena was issued by the government.
Regarding the preservation of data, legal hold policies may need to be amended to address ephemeral messaging, including when a company is dealing with government regulators. See e.g., Federal Trade Commission v. Noland, et al., Case No. CV-20-00047-PHX-DWL (D. Ariz. 2021) (sanctioning defendants for installing and using ephemeral messaging after learning they were investigation targets).
Some regulators caution against the use of ephemeral messaging. For example:
- The U.S. Securities and Exchange Commission (“SEC”) issued a guidance in 2018 that prohibits business use of apps which permit automatic destruction of messages.
- The U.S. Department of Justice (“DOJ”) updated its Evaluation of Corporate Compliance Programs in March 2023 which discusses the factors that prosecutors should consider in conducting an investigation of a corporation including the adequacy and effectiveness of the corporation’s compliance program at the time of the offence as well as at the time of the charging decision.
Accordingly, establishing adequate and effective corporate compliance programs are important, including:
- establishing a corporate compliance program which is monitored, updated, and works in practice, and
- reviewing the company’s document-retention policies and procedures, including whether they address ephemeral messaging and mobile device data.
In sum, although ephemeral messaging is short-lived, the consequences – of failing to comply with data preservation and regulatory obligations – may be long lasting.
Once upon a time, the production of information in civil litigation primarily consisted of the exchange of hard-copy, paper records. Those days are long gone.
We now are in the electronic age, and productions feature all sorts of electronic data. It is important to get it right when it comes to eDiscovery, as the downside consequences for getting it wrong can be severe.
Continue reading “Get Your E-Discovery Together”
Partner Sheila Raftery Wiggins was featured in an article on eDiscovery in NJBiz. Here is an excerpt:
Sheila Raftery Wiggins, a partner at Duane Morris LLP, says people communicate more from home, while traveling and over the Internet, creating more possible evidence for companies to store.
During litigation, the process of electronic discovery — reviewing and identifying what electronically stored information, out of potentially millions of documents, needs to be turned over to the opposing party — often is cumbersome and costly for companies, but a recent court ruling might lead to the more widespread acceptance of technology that could save companies money and time.
Read the rest of the article on the NJBiz website.
The Supreme Court of Pennsylvania recently amended the Pennsylvania Rules of Civil Procedure to officially include the discovery of electronically stored information. The amended rules become effective August 1, 2012.
Changes to Rules
Amended Rule 4009.1 includes “electronically stored information” among the list of items a party may request. The person requesting electronically stored information may specify the format in which it is to be produced and the responding party may thereafter object. If no format has been requested, the responding party may produce electronically stored information in the form in which it is ordinary maintained or in a reasonably usable form.
Continue reading “Supreme Court of Pennsylvania Reject Federal Case Law on E-Discovery and Adopts A Proportionality Test for E-Discovery in Amendments to the Rules of Civil Procedure”
Once upon a time, it was widely believed that electronic discovery would streamline litigation, making it faster, easier, less burdensome, and less expensive. So, now that we are some years into the e-discovery experience, has the prediction come true? Sadly, not necessarily.
While it is true that it can be easier to retrieve information electronically by using search terms, rather than sending teams of associates into warehouses to rummage through boxes of documents, that is just the tip of the iceberg when considering the overall e-discovery effort. And even if vast quantities of electronic information can be brought up based on a simple search, that information had to be harvested at the front-end, and ultimately will need to be reviewed at the back-end.
Continue reading “E-Discovery Is More Costly, Burdensome Than You Think”
Previously, we reported that a federal court in the Western District of Pennsylvania held that the two prevailing defendants may recover more than $365,000 in e-discovery costs because such costs are the modern-day equivalent of duplication costs. That decision has now been vacated and remanded back to the District Court to re-tax costs. According to the panel, only the scanning of hard copy documents, the conversion of native file to TIFF and the transfer of VHS tapes to DVD involved taxable “copying” costs, which are recoverable.
It’s happened: In a landmark e-discovery ruling, a federal judge has explicitly approved of computer-assisted review, also known as predictive coding (the use of sophisticated algorithms to enable a computer to determine relevance based on training by a human reviewer), to search for potentially responsive electronically stored information, or ESI.
Magistrate Judge Andrew Peck, of the Southern District of New York, concluded “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases” in Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group, a gender-discrimination case.
Continue reading “Landmark E-Discovery Ruling Approves Computer-Assisted ESI Review”
Electronic discovery can be time-consuming, burdensome and expensive. Indeed, at times, e-discovery can be the tail that wags the litigation dog.
As a consequence, Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit, on behalf of an E-Discovery Committee, recently introduced a Model Order for Patent E-Discovery.
The Committee’s discussion underpinning the Model Order notes that federal district courts have inherent power to control their dockets in the interests of time and economy. Accordingly, it is the Committee’s view that the Model Order may be a “helpful starting point for district courts to use in requiring the responsible, targeted use of e-discovery in patent cases.”
Continue reading “Controlling E-Discovery Costs In Patent Cases”
While it may surprise some, the answer to that question is YES. As a result of the expanding volume of electronic data that must be produced in litigation, e-discovery costs have been one of the biggest concerns of both clients and lawyers for some time. Now, clients and lawyers alike have reason to stress about the costs even more. Recently, a federal court in the Western District of Pennsylvania held that the two prevailing defendants may recover e-discovery costs because such costs are the modern-day equivalent of duplication costs. While the judge took care to limit the ruling to the “unique” facts associated with this case, it has not stopped lawyers from speculating about what other cases might similarly fall within the purview of this ruling.
Continue reading “The Changing Face of Litigation – Can the Loser Be Charged With the Other Party’s E-Discovery Costs?”