PBCBA BAR BULLETINS PBCBA Bulletin - March 2020 | Page 14

A Potential Safe Harbour When Using Ephemeral Messaging Apps Fla.R.Civ.P 1.380(e) provides that “[a]bsent exceptional circumstances, a court may not impose sanctions…on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.” A recent search found no Florida cases interpreting this rule. A detailed analysis of whether the use of ephemeral messaging is “routine” and being used in “good faith” is beyond the scope of this article. However, Rule 1.380(e) potentially provides a safe harbor if your client has implemented a defensible electronic records retention policy that covers the use of ephemeral messaging apps. use of technology”; in this case, ephemeral messaging apps, or you need to retain someone who does. The Duty of Competence is non-delegable and, while third party vendors may know the technology, they don’t know the law. Ephemeral, MERRIAM-WEBSTER 2 CONFIDE, https://getconfide.com/ (last visited Jan. 30, 2020). Kaveh Waddell, The Risks of Sending Secret Messages in the 4 Set and Manage Disappearing Messages, SIGNAL SUPPORT 5 Id. 6 In the Matter of Snapchat, Inc., FTC File No. 132-3078 (2014) https:// www.ftc.gov/system/files/documents/cases/140508snapchatorder. pdf Thomas J. Kelly & Jason R. Baron, The Rise of Ephemeral Messaging Apps in the Business World, THE NATIONAL LAW REVIEW (April 23, 2019) Stacy Shelley, Phishing Number One Cause of Data Breaches: 8 The take away is to counsel clients how they can effectively document, implement and monitor policies addressing the use of ephemeral messaging and to advise them of the risks and benefits of using that technology, including the consequences if litigation arises. To effectively counsel clients, you must have “an understanding of the benefits and risks associated with the Lessons from Verizon DBIR, THE PHISHLABS BLOG (June 27, 2019) 9 2018 WL 646701 (N.D. Ca. Jan. 30, 2018). 10 Id. at *21. 11 172 So.3d 363 (Fla. 2015). 12 Id. at 391. 13 904 So.2d 547 (Fla. 4th DCA 2005), 14 Id. at 549. 15 See Shamrock-Shamrock, Inc. v. Remark, 271 So.3d 1200, 1203 (Fla. 5th DCA 2019). PALMBEACHBAR.ORG Voters of Fla. v. Dentzer: The Florida Supreme Court’s Hidden Pre- Litigation E-Discovery Preservation Mandate, 90 FLA. B.J. 8 (Nov. 2016) and Effie Silva, Sonia Zeledon, and Justin Stern, International E-Discovery: How the 11th Circuit’s Interpretation of Possession, Custody, or Control May Impact Multinational Corporations, 93 Fla. 17 14 Federal Rule 37(e) is far more specific and its scope and intent are the subject of an extensive amount of case law. 18 White House, THE ATLANTIC (Feb. 15, 2017) 7 For an excellent discussion of both of these issues, see Ralph Artigliere, Gill Freeman & William Hamilton, League of Women B.J. 60 (Jan./Feb. 2019) 1 3 16 Florida Rules of Professional Conduct, Rule 4-1.1. Rob Wilkins, Litigation & Dispute Resolution Practice Group Leader, has a preeminent commercial litigation practice with an emphasis on eDiscovery, Data Security and Privacy, and Breach Response. With over 35 years’ experience as a trial lawyer, Rob is one of 80 attorneys in the state of Florida with dual board certification in civil trial and business litigation. Rob counsels clients in litigation matters related to business disputes, employment, non-compete and trade secrets, civil RICO, securities, commercial real estate, landlord/tenant, and shareholder partnership disputes. He can be reached by e-mail at [email protected].