What to do if Discovery and messaging apps conflict

In today’s civil litigation, critical, relevant correspondence is as likely to be sent via WhatsApp, Telegram or Signal as email, snail mail or text message. These ephemeral messaging apps can send faster, end-to-end encrypted and often, but not always, temporary messages.

Recent enforcement actions against Wall Street banks over their use of WhatsApp and other messaging apps — and attempts by banks to police their own use of the technology — should serve as a cautionary tale for civil litigants, even those whose customers aren’t affected. under the same federal and state regulations.

Attorneys should pay particular attention to the preservation and recovery of ephemeral messages that may be discovered in a potential legal proceeding—especially if a client’s message preservation practices could result in a spoliation penalty.

Here are some reminders to consider when working with the customer to determine what message data can and should be retained.

Make sure to keep your existing short messages

Transient data are for a short, temporary period. For example, some messaging apps are designed to limit the lifetime of messages by setting an automatic expiration time and making them unrecoverable. Another example is random access memory (RAM). In situations where temporary data such as RAM is difficult to preserve or is commonly overwritten, court orders often contain provisions that limit disclosure of data from temporary sources. However, unlike RAM, many messaging apps allow the user to disable the default auto-delete features. In such circumstances, the litigants are required to preserve all communications that are relevant to any legal proceedings.

While the consequences of failing to preserve messages may not carry the kind of penalties that the Securities and Exchange Commission has meted out to Wall Street banks, they can still make it difficult to successfully litigate civil disputes. Courts have allowed parties to present evidence to a jury that an adversary’s use of instant messaging apps was specifically designed to exclude relevant evidence despite the existence of a litigation hold. This kind of claim can have a decisive effect on the outcome of the case.

Work with your customer’s IT professionals as soon as possible

Your client’s IT professionals play an important role in your efforts to preserve potentially discoverable communications and can help you understand your client’s messaging systems and applications. Meet with them as soon as possible and determine what communications can be preserved or restored. In many cases, they can help you suspend automatic deletion functions associated with messages and other electronic data.

Affirmative action by litigants to modify auto-delete settings has changed the way courts decide whether the loss of communications was intentional and bad faith. Therefore, ensure that you act quickly to ensure that all relevant tools and systems are set up to store communications with affected personnel.

Assess whether there was a pre-existing duty

Remember that the duty to preserve potentially relevant communications begins when a litigant either had notice that the messages were relevant to current litigation or should have known that the evidence might be relevant in future litigation. The exact date when the levy is incurred ultimately depends on the facts. But in most cases, it starts when a lawsuit is filed or when litigation is reasonably foreseeable. Your customer may also be subject to obligations arising from other sources, such as a pre-existing agreement, law or regulation. So, the next steps in recovering deleted messages should include determining whether they were deleted before the storage obligation existed.

When consulting with the client to determine what steps are needed to recover lost messages, remember that some messages may be created and deleted long before they need to be stored in the first place. In such circumstances, you don’t need to make Herculean efforts to restore the messages, but rather focus on the ones you were bound to before you deleted them.

Determine if your lost messages are gone forever

Many messaging apps claim that their messages disappear or are automatically deleted after the recipient views them. The truth is that the transitory nature of messages conveyed by apps can be quite nuanced. In many cases, even seemingly temporary messages and associated metadata can be archived or restored.

Messaging app Signal, for example, claims to allow users to manage the automatic deletion of messages by enabling or disabling the feature, or by setting it to only delete messages after a certain period of time. However, the site tells users that “if someone who receives a disappearing message really wants to record it, they can always use another camera to capture the screen before the message disappears.”

Even if the data has previously been deleted from your client’s devices and IT systems, additional copies may remain with their suppliers, consultants, lawyers and colleagues.

Data held by these third parties may be subject to your client’s control if they have the legal right, authority, or practical ability to obtain it from a non-litigation party. Their retention obligation also extends to those copies. If so, you need to act quickly to obtain them or ensure that they are preserved for the duration of the lawsuit.

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