Mission Impossible: Will This Message Self-Destruct?

Most people outside of the law do not realize how valuable evidence is in resolving courtroom disputes. There are a variety of rules around what is and what is not a trustworthy fact, but a participant in a case is typically doubted by the Judge, jury and lawyers if they head into court and testify that the other side is responsible for whatever is in dispute. A person’s words, once they get to court, or in a courtroom-like setting such as a deposition, are typically biased, or at least not believed without supporting evidence. This is why many criminal defendants do not testify because no matter what they say it will be not believed.

For this reason, many cases come down to documents. Documents are more trustworthy, especially if they were written at or around the time of the events in question. Judges, juries and lawyers tend to believe what the documents say, not what the people say now when they’re potentially biased. Again, there are various rules about which documents can be trusted and not trusted, but the American court system believes in documents.  It is designed to believe in preserved and produced evidence.  Specifically, they believe in communications by and between people about what really happened.

Since about 1995, documents used in litigation has meant, essentially, e-mails. While some people still write letters, memos, and other formal documents, the most popular communication tool over the past 20+ years is e-mail. While many criminal cases involve a police investigation and therefore different kinds of evidence, civil cases usually involve non-criminal activities, and thus usually what is in the documents people write. During the early 2000s, that meant that lots of time and money was spent by lawyers poring over e-mails, and courts ordering that backup tapes of such e-mails be made available for litigation. By the late 2000s, various technological tools (dubbed “e-discovery”) had uncovered methods to make that process more effective, quicker and better.

Over the past decade or so, civil litigation and resulting e-discovery has expanded to include text messages, social media communications, and other data created outside of the standard e-mail formats by which people correspond and thus evidence rules have expanded to account for this shift by updating the rules and standards for preserving and producing such data.

But now there is a new problem of ephemeral messaging.  This includes services such as SnapChat, Viber (below), Confide, Wickr, Telegram, and others. These are methods of communication where the data is intentionally not preserved or only preserved for a short time.  Evidence that is designed to disappear, for the very reason why preserved documents are the best evidence.  People use these services for all types of reasons, including not to leave the proverbial paper trail, and they are increasingly popular.  This creates a new quandary for civil litigation – when does a party have a duty to preserve, and to produce, ephemeral messages?

In really the first case to tackle this matter in a high-profile manner, Waymo v. Uber, the Court issued a discovery sanction against Uber for using ephemeral messaging, allowing Waymo to present evidence that using such services was deliberate to conceal theft, but also allowing Uber to present evidence that this use was not for such purposes. See Waymo LLC v. Uber Technologies, Inc., No. C17-00939 (N.D. Cal. Jan. 30, 2018). The case settled before the issue was further tested, so the issue remains unresolved.

Presently, there is no duty to preserve ephemeral messaging unless it is information that a company already preserves (like other information).  But it appears that courts will assign blame if a party chooses to use such a service.  While very few companies or people have moved to this type of communication in such a manner like Uber that it would be preserved for a future lawsuit, it is simplistic to expect that this will not be a part of the future of communications or litigation, just as e-mail, text messaging, and social media have all become regular parts of litigation.

This is a different issue because all of those technological tools created more data, and the question became whether it was necessary to be produced in litigation, not whether to preserve it at all. A court would likely only order ephemeral messages produced that are still within a party’s possession, custody or control when they became aware of the potential for a lawsuit, just like other forms of data. Attorneys should advise their clients not to take any steps whereby an adverse inference can be drawn against their use of ephemeral messaging, such as changing the features intentionally to destroy messages, or only sending certain types of messages on the ephemeral messaging service.  But if there is a valid reason for using ephemeral messaging, it should not be the subject of sanctions by a court, and this will likely be an increasingly reasonable ruling in the future.

This topic will become timely when people and companies begin to use such ephemeral messaging as a more regular part of its daily routines, and the question will be again raised about whether the use of such a service makes the communication untrustworthy, or whether, because it is being put on a service that is supposed to not be seen by others at a later date, would its contents become even more reliable?  The likelihood is that, for now, using an ephemeral messaging service would raise an inference that it was done deliberately.

As with prior technological innovations in data, the courts will adjust with the times. The Waymo case is merely the tip of the iceberg here.

Jeremy T. Elman

Jeremy T. Elman

Jeremy T. Elman is a trial lawyer who has appeared in over 75 IP matters for Fortune 500 companies and other high-profile technology companies, nearly a third as lead counsel.  He regularly writes about cutting-edge legal issues in the industry, especially in the software space.  Jeremy has been named as one of the Top 20 Cyber / AI Lawyers by the Daily Journal and the Most Effective Lawyer in IP by the Daily Business Review.  Jeremy practices in the areas of patent litigation, trade secret litigation, trademark litigation, copyright litigation, and other technology disputes.

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