While EMAs offer substantial benefits for their corporate and individual users, they present unique discovery challenges that are inconsistent with the duty to preserve evidence because of their ephemeral features. Often, EMAs are associated—rightly or wrongly—with the appearance of impropriety because relevant information disappears by design and may hide damaging evidence or wrongful conduct. Their use is likely to place many organizations at risk for failure to satisfy electronically stored information (ESI) preservation considering that a large portion of their workforce uses EMAs for business-related communications.
When litigation is reasonably anticipated or ongoing, a party is obligated to suspend its routine document-retention-and-destruction policy and promptly place a litigation hold. See Zubulake v. UBS Warburg (Zubulake IV), 220 F.R.D 212 (S.D.N.Y. 2003). During litigation, a party may seek to discover ESI that is relevant to a claim or defense, proportional to the needs of the case, taking into account the nature of the issues raised in the action, the parties’ access to relevant information, the parties’ resources, the probative value of the information, and the costs and burdens to preserve the information. Fed. R. Civ. P. 26(b)(1). ESI must be produced in a form "in which it is ordinarily maintained or in a reasonably usable form." Fed. R. Civ. P. 34(2)(E)(ii). Considering that some messaging apps are specifically designed to delete content after a message has been sent, how can a party reasonably comply with the rules governing ESI discovery and preservation and avoid sanctions? FRCP 26(b)(2)(b) provides that “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” In that same line, the 7th Circuit’s Electronic Discovery Pilot Program provides that ‘’ephemeral data” is among the categories of ESI that “generally are not discoverable in most cases.” Of course, the court may still order discovery if the requesting party shows good cause.
Can a party infer that it is relieved from its preservation obligation under the Federal Rules as it relates to EMAs—even if the information is relevant—by arguing that its actions qualify as use of a "routine, good faith operation of an electronic system”? Fed. R. Civ. P. 37(e). This certainly opens the door to great debates and challenges under the FRCP 37(e).
Recent case law shows that the use of ephemeral data may trigger a duty to preserve where such data is relevant and no other sources to obtain the information exist. For example, in Columbia Pictures, Inc. v. Bunell, the court discussed the preservation of “ephemeral” data as it relates to random access memory (RAM). See Columbia Pictures, Indus. v. Bunnell, No. CV 06-1093FMCJCX, 2007 WL 2080419 (C.D. Cal.), motion for review denied sub nom. Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007). This case involves a copyright dispute where the plaintiff alleged that the defendant allowed its users to download pirated copies of movies and TV programs. The plaintiffs requested production of the defendant’s server logs containing the users’ IP addresses. The defendant declined, contending that the server logs were not stored in permanent form but instead were available only in RAM. Specifically, the defendant asserted that because RAM was “too ephemeral,” it was not subject to production under FRCP 34. The court disagreed and showed that the server logs could be extracted and produced in another usable form. The court sanctioned the defendant for intentional spoliation and failure to preserve and produce.
In another significant case, Waymo LLC. v. Unver Technologies, Inc., the court emphasized the importance of preserving and safeguarding relevant ephemeral information during or in anticipation of litigation. Waymo LLC v. Uber Tech., Inc., No. C 17-00939 WHA, 2018 WL 646701 (Jan. 30, 2018) (holding that plaintiff could present evidence and argument to the jury regarding defendant’s use of “ephemeral messaging” to eliminate relevant evidence). This case involves a trade-secret-misappropriation dispute over autonomous-vehicle technology. Waymo argued that its competitor Uber Technologies Inc. used the EMA Wickr to delete key information about stealing its trade secrets while a litigation hold was in place. The court found that Uber had a legal responsibility to preserve relevant information but did not intend to destroy it. In fact, the court permitted Uber to present evidence to support the legitimate business use of EMA. In turn, Waymo was permitted to present evidence to the jury that Uber’s use of ephemeral messaging created “gaps in Waymo’s proof that Uber misappropriated trade secrets.” The court never addressed the use of ephemeral messaging when a litigation hold is in place as the case settled.
In a recent discrimination case, Herzig v. Arkansas Foundation for Medical Care, Inc., the court ordered the plaintiffs to produce relevant text messages and they did. Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101, 2019 WL 2870106 (W.D. Ark. July 3, 2019). Subsequently, the plaintiffs started to use the EMA Signal to communicate between themselves but failed to disclose their communications. The court found that the plaintiffs acted in bad faith because they intentionally hid their communications from the defendant and sanctioned them. Interestingly, the court did not analyze the issue of spoliation under FRCP 37(e), which was specifically implemented to address that issue.
These cases are instructive as they remind attorneys and their clients how EMAs, despite some of the benefits they offer, come with greater risks that can prevent them from complying with their obligations to produce relevant information during anticipated or ongoing litigation. Waymo reminds attorneys to advise their clients not to use EMAs to delete potentially relevant information during or in anticipation of litigation and the importance of placing litigation holds. Hertzig stresses the implications of clients who try to evade discovery compliance by deleting relevant information.
Attorneys have an ongoing ethical duty to educate themselves and their clients about the uses and implications of EMAs. Because they raise to the appearance of impropriety due to their ephemeral features by design, best practice commands the implementation of corporate policies specifically tailored to EMAs including retention and legal holds in place sooner than later.
Reminding clients to refrain from using EMAs during anticipated or ongoing litigation seems like good advice after all.
