Spoliation of Evidence: Ephemeral Messaging
Popular ephemeral messaging apps like Snapchat, Confide, Wickr, and Threema are changing the way we communicate. Unlike traditional text and messaging applications, these apps provide encryption, screenshot protection, data storage, and automatic content deletion from all devices. However, federal regulators and courts remain wary of this technology because individuals and businesses could use it to try to conceal illegal activity or avoid their discovery obligations.
Ephemeral Messaging Apps Can Impact Discovery Compliance
While ephemeral messaging apps (EMAs) offer substantial benefits for corporate and individual users, they present unique challenges, especially when it comes to litigation. Information shared on these platforms is intended to be short-lived. A key benefit of the technology is that messages disappear shortly after being read. However, using an EMA to conceal or destroy evidence can lead to significant sanctions or additional criminal charges.
The benefits of EMAs are significant, especially for corporate users. Businesses can use an ephemeral messaging platform to safeguard confidential communications and sensitive content. Using an EMA platform also decreases the amount of data a company stores, which encourages compliance with data minimization requirements.
However, the use of these apps is potentially inconsistent with the duty to preserve evidence and could lead to adverse inferences, sanctions, or other punishments. When litigation is anticipated, a party is obligated to suspend document retention and document destruction policies and must preserve potentially relevant evidence. During discovery, a party can seek electronically stored information that is relevant to a claim or defense. Under federal law, the evidence must be produced in a form “in which it is ordinarily maintained or in a reasonably usable form.” But when information is sent via an EMA that is specifically designed to delete content after a message has been sent, it can be difficult for a party to comply with the rules governing discovery and preservation of evidence.
Analyzing Intent in Ephemeral Messaging App Cases
A common issue in cases involving EMA evidence is when a company adopts an ephemeral messaging platform.
For example, in Herzig v. Arkansas Foundation for Medical Care, Inc., an age discrimination lawsuit, the plaintiffs were ordered to produce relevant text messages. After turning over the messages, they switched to an EMA platform to communicate between themselves. The court found that the plaintiffs acted in bad faith because they intentionally hid their communications.
Similarly, in FTC v. Noland, the Federal Trade Commission (FTC) was investigating a company called Success By Health and three of its principal owners. The defendants were ordered to suspend their normal document retention and destruction practices during the investigation. After learning of the investigation, the owners began using two EMAs to discuss important business. They were charged with running a pyramid scheme and making false statements to consumers and also faced charges of destruction of evidence.
Spoliation of Evidence and EMAs
Significant evolutions in information technology have radically altered the way we communicate. Law enforcement agents recognize the importance of digital evidence and are increasingly using it as part of criminal investigations.
While many users believe that information sent through an EMA is private or will be deleted, law enforcement agents can and often do use information communicated on ephemeral messaging platforms as evidence in an investigation, to impose civil liability, or in a criminal case.
In some cases, screenshots are used as evidence of criminal activity. In others, the company that owns the EMA has a duty to comply with law enforcement requests to preserve and turn over evidence.
For example, Snap Inc. has a page dedicated to law enforcement that states, “If a Snap is unopened by one or more recipients, it may remain on our servers for up to 30 days. A Snap that has been posted to a user's Story can be viewed for up to 24 hours.”
The page goes on to say that the company “[W]ill honor requests from law enforcement to preserve information…Upon receiving a signed and dated preservation request on law enforcement department letterhead, we will attempt to preserve available Snapchat account records associated with any properly identified Snapchat user(s) in an offline file for up to 90 days, and will extend the preservation for one additional 90-day period with a formal extension request.”
Companies that opt to use ephemeral messaging should do so carefully and be mindful of the benefits and risks of using an EMA platform, especially when there is a threat of litigation or an investigation. The Director of Enforcement for the Securities and Exchange Commission (SEC) made clear that when corporations and individuals deliberately use EMAs while litigation is anticipated or pending, the SEC will conclude that spoliation of evidence occurred and will ask the court to impose sanctions or other appropriate relief.
Use EMAs with Care
While Ephemeral Messaging Apps offer organizational benefits like increased security and the ability to decrease data retention, they must be used with care. Users should not use them to circumvent their duty to preserve evidence. They should also be mindful that information communicated via an EMA, even though it seems to “disappear,” can still be accessed by law enforcement and used as part of an investigation or a criminal case.
Hope Lefeber is a federal criminal defense attorney in New York City. For more than 30 years, she has provided her clients with an aggressive defense against federal investigations and criminal charges.