The Innovation of Litigation.

Controlling Disappearing Communications in the Workplace: Four “Litigation-Friendly” Ephemeral Communications Apps

Since as early as 2014, individuals and businesses have adopted ephemeral (aka “disappearing”) apps for secure and private messaging. While the general population embraces these apps for their privacy features, attorneys—especially in house counsel—must deal with myriad legal issues, such as eDiscovery, preservation, and spoliation that arise from the use of these apps. For attorneys advising clients on the use of ephemeral apps in the workplace, this post recommends four “semi-ephemeral” messaging products that are litigation-friendly.

In November 2017, Uber Technologies Inc. (Uber) executives came under scrutiny for using Wickr and Telegram, ephemeral messaging apps, to hold secret conversations regarding Uber business. Specifically, Waymo, Alphabet Inc.’s self-driving car company, accused Uber of using the messaging apps to discuss trade secrets stolen from Waymo.

The litigation revealed the legal issues arising from the use of ephemeral apps, also known as disappearing or self-destructing messaging apps, in the workplace. While the use of these apps offers a broad range of benefits, such as secure and private messaging, it also raises legal issues with respect to eDiscovery, preservation, and spoliation.

A panel of in-house counsel recently discussed these issues at the Electronic Discovery Institute (EDI) 2018 spring meeting. Entitled The Texas-Two-Step – What’s Old is New Again: Thoughts on Preserving Ephemeral Data, the panel and members of the audience discussed (and sometimes debated) the risks of using ephemeral messages in the workplace. As mentioned above, the panel agreed that the use of ephemeral apps by company employees posed eDiscovery, preservation, and spoliation issues. The panel members also mentioned that the existence of the app on employee phones introduces optics problems. Just like the Uber case, or the controversy involving the governor of Missouri, the mere presence of an ephemeral app on a phone has the tendency to invite suspicion of unscrupulous acts, whether warranted or not. The panel’s overall consensus was that it would be better for company employees and executives to refrain from using ephemeral apps, especially when discussing business matters—more easily said than done.

If you cannot convince your client to delete ephemeral messaging apps from his or her cell phone, we suggest that you recommend the apps listed below to your client. Why? Unlike ephemeral messaging apps that completely destroy a message, such as Confide or Dust, these messaging apps allow users to preserve certain messages as soon as litigation is anticipated:

  1. Signal
  1. Telegram
  1. Vaporstream
  1. Wickr

While the use of these apps won’t resolve the optics problems discussed above, they should at least provide attorneys with some peace of mind that evidence isn’t being automatically destroyed during a litigation hold.

Do you or a client use ephemeral messaging apps in the workplace? Do you know of any other ephemeral messaging apps that allow preservation of messages for litigation hold purposes? Please let us know!

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