Burn After Reading: The Challenge of eDiscovery in Self-Destruct Messaging Environment

By | January 8, 2020

Self-Destruct messaging technology also known as “ephemeral” messaging allows users to send temporary electronic messages, pictures, videos and other electronic communications over the internet. The messages are programmed to self-delete after being read or viewed by the recipient. The messages are temporary by nature and design. Examples of ephemeral messaging apps include Snapchat, Telegram, Confide, Wickr etc.

The popularity of ephemeral messaging lies on its ability to give the user close to absolute control over online communication initiated by the user. This level of control and privacy is uncommon in online communication. The technology provides users the comfort that the messages they send can really be private to the sender and recipient. While ephemeral messaging is common among the teenage population in the online social media world, its usage in corporate and business environment is gaining increasing traction and for many reasons. It allows users to send confidential information without creating any traceable digital footprint. It also facilitates open frank conversation, and allows for brainstorming of ideas in a confidential collaborative environment. Ephemeral messaging also assists in data management by reducing the amount of data retained or stored in a storage device.

Privacy by Design v. Spoliation by Design

Privacy by design (PbD) was a concept developed by Ann Cavoukian in the 90s. It has come to embody the idea that privacy should be key consideration for new technologies at their inception rather than an afterthought (McPeak 2018). Ephemeral messaging technology embodies this concept. According to McPeak, ephemeral messaging apps “embody privacy by design by offering self-destructing communication tools that mimic live conversation and avoid permanent records.” While this may be a positive feature of the technology, it also has some negative implication when considered in the context of electronic discovery. Ephemeral messaging while still in transient form, qualifies as “document” and hence subject to discovery if relevant to litigation. Destruction of the document (even if self-triggered) may in some cases amount to spoliation.

Spoliation in civil proceeding occurs when a party intentionally destroys, mutilates, alters, or conceals evidence usually document relevant to litigation. Hence, there is a general duty on parties or prospective parties in litigation to take reasonable steps to preserve documents related to an on-going litigation, or reasonably anticipated litigation. Thus, the act of spoliation is a breach of duty to preserve such evidence. While the use of ephemeral messaging technology does not (without more) amount to spoliation, use of such technology when litigation has commenced or is reasonably anticipated could give rise to spoliation. Same will also be the case where the technology is used in bad faith by the parties, or deliberately for the purpose of destroying evidence so as to make such evidence unavailable in the event of litigation. This was evident at the discovery phase in the Waymo v. Uber litigation.

Burn After Reading – Waymo v. Uber

One of the most prominent litigation relating to the use of self-destruct messaging technology was the case of Waymo v. Uber. This was a trade secret misappropriation litigation between two tech giants Waymo (owned by Google) and Uber the peer-to-peer ridesharing titan. Waymo brought the litigation against Uber for trade secret theft alleging Uber stole its autonomous vehicle technology. Evidence relating to the trade secret dealing by Uber was alleged to have been transmitted by ephemeral messaging app. While Uber asserted that the company’s use of self-destruct messaging app was a legitimate business use, Waymo was allowed to present evidence to show that the use of the app by Uber was deliberately aimed at concealing evidence relating to the theft of the trade secret. Few days into trial, Uber opted to settle the case for a record $245 million investment stake by Waymo in Uber. While the settlement conclusively ended any further disclosure of information relating to the use of the self-destruct messaging app by Uber, it did raise some legal and ethical issues with regards to the use of self-destruct messaging technology in corporate business environment.

Legal and Ethical Conundrum

Ephemeral messages can be subject matter of discovery in litigation. As has been noted earlier, there is a legal obligation on parties or prospective parties to litigation to take steps to preserve information that are or may be relevant to litigation. This legal obligation may apply even to ephemeral messages. Thus, a party has a legal obligation to preserve ephemeral messages where such messages are or may be relevant to litigation. This obligation may also require parties to suspend or revisit their policy with regards to the use of ephemeral messaging where litigation has commenced or is reasonably anticipated. Continued use of such technology to transmit documents relevant or likely relevant to litigation when litigation is pending or reasonably anticipated may be construed as a calculated attempt to hide or destroy relevant documents. Where it is shown that a party’s use of the technology was intended to deliberately spoliate evidence that are relevant to litigation, this should attract punitive sanction by the court.

On the part of the lawyer, the rise of self-destruct messaging technology gives rise to at least two ethical obligations. First, a lawyer representing a client e.g. a corporation that uses self-destruct messaging technology has an ethical obligation regarding competence to understand not just the technology but also the risks and benefits of the technology. Secondly, where litigation has commenced or is reasonably anticipated, the lawyer has an ethical obligation to advise the client about its obligation to preserve evidence relevant to litigation including those that are ephemeral in nature. This obligation also extends to enabling the client to fulfill its discovery obligation. Thus Rule 5.1-3.1 of the Law Society Ontario Rules of Professional Conduct imposes an obligation on lawyers when acting as advocate to explain to their client the necessity of making full disclosure of all documents relating to any matter in issue; and to assist their clients in fulfilling the obligations to make full disclosure. Hence, the duty of full disclosure extends to disclosure of documents that may exist in ephemeral form, as well as a duty to take reasonable step to preserve the documents where failure to do so would adversely affect the full disclosure. A lawyer should not advise the client to use ephemeral messaging technology to conceal or destroy evidence that may be relevant in litigation. Doing so will attract serious consequences from the court and may give rise to disciplinary action by the profession.

In addition, a lawyer involved in discovery in civil litigation should inquire from the opposing party if it uses ephemeral messaging technology and what relevant documents would have likely been transmitted using that technology. This was a vital piece of information that was initially missed in the Waymo v. Uber litigation and when the evidence came to light, Uber was quick to settle the litigation most likely to avoid punitive sanctions.

Conclusion

It is ironic that a system designed to facilitate privacy could also facilitate spoliation. Self-destruct messaging technology will continue to gain wide usage in corporate business environment. This will continue to give rise to spoliation issues in litigation. While the use of the technology is not unlawful and should not be discouraged where there is genuine need for it, it is important for lawyers to understand the technology and know when to clog its use by the client.

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