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December 31, 2019 Practice Points

Ephemeral Data, Ephemeral Messaging Apps, and Disappearing Data

Another front in e-discovery disputes.

By Andrew M. Toft

Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-cv-02101, 2019 WL 2870106 (W.D. Ark. July 3, 2019) discusses spoliation of evidence from using apps with settings that permit the automatic deletion of data after a short period of time. The takeaway for lawyers is to educate themselves and clients about the legal issues and risks arising out of the use of these ephemeral messaging apps. Lawyers also need to inquire about the use of ephemeral messaging apps by opposing parties and demand preservation of otherwise ephemeral data.

The plaintiffs’ employer was an IT company that handled protected health information. Both plaintiffs were very experienced in the IT field. The plaintiffs were fired, along with others, following discovery of an exploit in software that their employer had designed and developed. Both plaintiffs filed a complaint against their former employer claiming age discrimination.

As part of the Rule 26 conferral process, the parties agreed that the defendant might request data from the plaintiffs’ mobile phones. The parties also agreed they had taken reasonable measures to preserve discoverable data from alteration or destruction. The defendant served requests for production seeking plaintiffs’ communications with current or former employees of the defendant relevant to the plaintiffs’ claims. The plaintiffs’ responses were incomplete and the defendant filed a motion to compel that resulted in some additional text messages being produced. After production, one of the defendants installed an app on his phone that permitted him to send and receive encrypted messages accessible only to the sender and receiver. The app could be configured to automatically delete the messages after a short period of time. The other defendant already used the app. The defendants used the app to communicate with each other and with another former employee. The plaintiffs never disclosed additional text messages. The defendant was unaware that the plaintiffs used the app until one of the plaintiffs disclosed the use of the app during his deposition near the end of the discovery period.

The defendant filed a motion to dismiss or for an adverse inference instruction for intentional and bad-faith spoliation of evidence. Based on the plaintiffs’ familiarity with information technology, their reluctance to produce responsive communications, one plaintiff’s initial misleading response that he had no responsive communications, their knowledge that they must retain and produce discoverable evidence, and their manual configuration of the app to delete text communications, the court believed that their decision to withhold and destroy the likely responsive communications was intentional and done in bad faith. However, because the court contemporaneously granted the defendant’s separate motion for summary judgment, no sanction was imposed.

Comment 8 to Model Rule of Professional Conduct 1.1 states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

As technology changes, lawyers must educate themselves about the changes. The risk of not keeping abreast of changes is overlooking data in discovery that could help your client, or not being aware of client data that could harm the client’s case but still must be disclosed. While the data or text messages may be ephemeral, the risks of not complying with MRPC 1.1 are not.

Andrew M. Toft is an attorney in Denver, CO.

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