Messaging Apps: Don't Let the Disappearing Act Catch You by Surprise in Discovery

2016-09-05

Slack. Jabber. Google Hangouts. Wickr. Confide. Messaging apps are no longer the future of eDiscovery, they are the present. Although these chat-style software programs and mobile messaging apps provide conven­ience for day-to-day business, they can pres­ent significant challenges in litigation. A party who is in litigation, or who reasonably anticipates being in litigation, is obligated to preserve relevant electronic evidence. But what does that mean for a business that utilizes an enterprise-wide chat function or other forms of messaging? Are employees permitted to use “disappearing” ephemeral messaging apps to communicate after a liti­gation hold is in place? Can they only use systems that can be configured to prevent a message from being completely deleted? By and large, these questions remain unan­swered, but understanding the rules frame­work will lead us toward some of these answers—and is the first step to preventing the data disappearing act from catching you by surprise.

ARE MESSAGING APPS SUBJECT TO DISCOVERY?

In litigation, a party is entitled to dis­cover electronically stored information (“ESI”) that is relevant to a claim or defense and proportional to the needs of the case, considering the burden to the party produc­ing it and the value of the information. There is still some debate about whether certain types of “disappearing” messages fall into this scope of discovery because some apps are designed specifically to prevent the messages from being stored. Even so, if a particular messaging app “journals” chats or otherwise logs them, chances are high they will be considered ESI and subject to discov­ery.

Early case assessment involves searching for the ESI that exists in many different places. Because litigators typically focus on email and other documents, it can be easy to overlook chat messages as a source of po­tential discovery. As you begin your initial case investigation, remember to ask key wit­nesses if they use chat-style applications.

Likewise, ask opposing counsel about chat and other ephemeral messages during the court-mandated discovery conference. Failing to do so could mean losing an impor­tant source of relevant information.

Assuming your company or your client uses a messaging platform, what happens next? You will want to ask at least three crit­ical questions: (1) Are the chat messages likely to contain information relevant to the case?; (2) Are they fixed in some medium that will allow them to be preserved and col­lected?; and (3) How burdensome will preservation and collection be?

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