This Message Will Self-Destruct in 5 Seconds

Howard Baker’s quote – “it is almost always the cover-up rather than the event that causes trouble” – has taken on significance in recent cases involving e-discovery and electronic messaging. Courts increasingly view the preservation of communications as a rote, ordinary-course business practice and during litigation or investigations, where relevant electronic communications have not been preserved, the focus of the inquiry can turn from the actual event in question to a perceived cover-up.

The intentional destruction of evidence clearly has serious, potentially criminal implications, but the courts’ presumption about simplicity of preservation may not be as obvious to companies charged with that responsibility, given the proliferation of ephemeral messaging applications. Ephemeral messages shared via specific platforms and applications typically “self-destruct” after they are read, posing unique preservation challenges. Courts have so far taken a skeptical view of ephemeral messaging, particularly in situations where that method may have been chosen specifically to avoid documenting communications.

Cases Addressing Ephemeral Messaging

The seminal case cited for e-discovery preservation mandates that “once a party anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents” (Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)).

Under Federal Rule of Civil Procedure 37, the failure to preserve information that prejudices a party allows a court to “order measures no greater than necessary to cure the prejudice.” However, “upon a finding that the party acted with intent to deprive another party of the information’s use in the litigation,” a judge may presume lost or unavailable information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable or even dismiss the action or enter a default judgment in a particularly egregious case.

And it is that presumption that puts the focus on ephemeral messaging.

Recently in Herzig v. Arkansas Foundation for Medical Care, Inc. (W.D. Ark. July 3, 2019), plaintiffs alleging age discrimination were forced in the early stages of their lawsuit to turn over text-message communications. They then began to communicate using Signal, an app that allowed them to send and receive encrypted text messages and delete them after a short period of time. The judge found various factors supporting the conclusion that the plaintiffs used ephemeral messaging to intentionally destroy evidence, including that the plaintiffs were familiar with technology, were reluctant to turn over relevant information, made misleading initial discovery responses and then manually configured Signal to destroy messages. The judge concluded that the use of ephemeral messaging was “intentional, bad-faith spoliation of evidence.”

Similarly, in Waymo LLC v. Uber Technologies, Inc. (N.D. Cal. Jan. 30, 2018), the judge allowed Waymo, the plaintiff in a case alleging theft of trade secrets, to question Uber at trial about its use of ephemeral messaging so that the jury could decide whether its use was a possible explanation for why Waymo had failed to discover more evidence of Uber’s alleged misconduct. Waymo would be allowed to put evidence in front of the jury that Uber “sought to minimize its ‘paper trail’ by using ephemeral communications.” However, the judge also allowed Uber “to present its own evidence that its use of ephemeral communications showed no wrongdoing, including by pointing out Waymo’s own use of ephemeral communications.”

The issue of ephemeral messaging in litigation is not likely to go away anytime soon. For example, the judge in WeRide Corp. v. Huang, 5:18-CV-07233 (N.D. Cal.), heard oral argument on a motion seeking sanctions related to the use of ephemeral messaging on February 27, 2020 and took the matter under submission with a ruling possible any day.  Meanwhile in the District of Columbia, a judge dismissed claims that the Trump administration’s use of ephemeral messaging systems violated federal laws requiring the creation and maintenance of official records (Citizens for Responsibility and Ethics in Washington v. Trump, 2020 WL 619959 (D.D.C February 10, 2020)). While the judge dismissed the case on jurisdictional grounds, she noted the opinion “should not be interpreted to endorse, the challenged practices; nor does it include any finding that the Executive Office is in compliance with its obligations.”

The DOJ’s Evolving View on Ephemeral Messaging

As ephemeral messaging has proliferated, the Department of Justice’s stance has shifted. In 2017, the DOJ took a dim view of ephemeral messaging, stating in its November 2017 Corporate Enforcement Policy that merely using ephemeral messaging made companies ineligible to receive full remediation credit when disclosing potential Foreign Corrupt Practices Act issues.

However, in March 2019, the DOJ amended the same policy to instead require companies to prohibit “the improper destruction or deletion of business records, including implementing appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms that undermine the company’s ability to appropriately retain business records or communications or otherwise comply with the company’s document retention policies or legal obligations.” The policy change focused on the impact on a company’s ability to preserve documents (and, presumably, turn them over to the DOJ in an investigation), rather than using a per se bar. The policy change leaves open the possibility that companies can continue to use ephemeral messaging applications as long as they have done so in a considered and risk-tailored fashion.

Best Practices for Ephemeral Messaging

While the pace of technological advancement means that messaging platforms and applications at issue will keep changing, best practices can help minimize risk related to ephemeral messaging and other electronic communications.

Companies and executives can start by implementing effective electronic records-retention and preservation policies. The policy should specifically cover ephemeral messaging, including preservation requirements relating to them, the identification of any legitimate business need for such messaging (such as employees working in particularly politically dangerous environments) and what platforms and applications are allowed.

Companies and executives then should train employees on these policies. And, upon receiving reasonable notice of litigation, an investigation or other legal action, they should disable any automatic destruction of electronic communications.

Ephemeral messaging is here to stay and will only become more widespread. Being aware of the issues it raises is crucial if companies are to develop and maintain clearly delineated policies and react quickly and transparently in the even an investigation or legal action ensues.