PBCBA BAR BULLETINS PBCBA Bulletin - March 2020 | Page 13

EDISCOVERY CORNER
CLIENT LITIGATION RISKS WHEN USING
EPHEMERAL MESSAGING APPS
ROBERT W. WILKINS
According to Merriam-Webster’s dictionary,
ephemeral means “lasting a very short time”
A number of messaging apps are designed
for this very purpose—to allow messages and
photos to self-destruct. SnapChat, Confide,
Telegram, Hash, Signal, Wickr and an ever-
growing number of similar messaging apps
promote themselves based on both the
power of their end-to-end encryption and
their ability to disappear without a trace.
For example, Confide is a self-destructing
messaging app that deletes messages
immediately upon opening. Confide promotes
its app as “encrypted, ephemeral and screen-
shot proof.” It was the ephemeral messaging
app of choice used by White House employees
to cover their tracks during the hunt for
“leakers.” Signal, which NSA whistleblower
Edward Snowden once said he uses every day,
allows disappearing messages to be managed
by anyone in the conversation thread and a
timer can be set to determine how long the
message remains once opened. Not all of the
disappearing claims are true. Signal warns
users that its app is “not for situations where
your contact is your adversary” since the
recipient could always use another camera to
take a photo of the screen before the message
disappears.
SnapChat’s “disappearing”
messages claim was deemed false or
misleading by the FTC resulting in a Consent
Order being entered against it.
Regardless of which messaging app is used,
the essential purpose remains the same—to
send and receive encrypted messages and
avoid the preservation of the message and
its content. While these apps are a great form
of social media, they can be problematic in
litigation.
vulnerable point of entry for data breaches.
However, even legitimate business reasons
for using encrypted disappearing messaging
apps can be problematic in litigation.
In Waymo, LLC v Uber Technologies, Inc. ,
which involved alleged misappropriation
of trade secrets, Uber employees’ use of
ephemeral messaging became an issue in the
litigation. Uber claimed that its employees
used ephemeral communications like Wickr
and Telegram because the ephemerality
and end-to-end encryption make it a more
secure means of communication. And, Uber
asserted ephemeral communication is a best
practice because it results in less data for the
company to secure. However, the mere use of
ephemeral messaging by Uber’s employees
resulted in allegations that its use must have
been for purposes of thwarting discovery in
reasonably foreseeable litigation.
records retention policy that covers the use
of ephemeral messaging apps, that limits
their employees’ use to legitimate business
purposes and on a need-to-know basis.
Clients should further ensure that their
employees are trained in the appropriate
use of the technology for business purposes
and that their litigation hold software or
practices have the capability to suspend the
use of ephemeral messaging.
Potential Preservation Problems
By now, the common-law duty to preserve
information when litigation is reasonably
foreseeable is well-established in Federal
law and, more recently, in Florida law. In
League of Women Voters of Florida v. Dentzer
, the Florida Supreme Court recognized the
duty to preserve evidence “when a party
should reasonably foresee litigation.” The
Dentzer court cites to American Hospitality
Management Co. of Minnesota v. Hettiger ,
which held that a defendant can be charged
with a duty to preserve evidence “where it
could reasonably have foreseen the claim.”
However, “reasonably foreseeable” is an
objective standard and fact specific. If you
or the client guess wrong, and data is lost,
you potentially face serious consequences.
When the lost information is emails or other
electronically stored information, a good
forensic expert can usually recover the data.
But, even the best forensic experts can’t
recover encrypted ephemeral messages that
should have been preserved but no longer
exist.
In Waymo, the plaintiff alleged Uber’s use of
ephemeral messaging was the reason for gaps
in Waymo’s proof that Uber misappropriated
trade secrets. After an enormous amount of
discovery and motion practice, the court ruled
“Uber’s use of ephemeral communications
is also relevant as a possible explanation
for why Waymo has failed to turn up more
evidence of misappropriation…” The result
was that Waymo was permitted to present
evidence and argument on that issue to the
jury, and Uber would be allowed to present
its own evidence and argument that its
use of ephemeral messaging showed no
wrongdoing. Obviously, having to present
this issue to the jury distracts from the merits
issue and raises the risk of an adverse ruling (Continued on next page)
due to the use of ephemeral messaging apps.
Legitimate Business Purposes with Potential Waymo is a classic example of the tail
Consequences
wagging the dog. The merits issue—whether
trade secrets were stolen—became secondary
There are legitimate business reasons for using to the fight to win on discovery issues
ephemeral messaging apps. In particular, caused by the use of ephemeral messaging
confidential
communications
between apps. While there were a lot of other issues
employees working on the development related to alleged discovery abuses in
of new products or other highly sensitive Waymo, the take-away is attorneys need
issues often are encrypted and ephemeral to counsel their clients so they understand
to limit the risks of exposure. In addition, the potential problems and risks associated
businesses generally don’t want to keep data with even the legitimate use of ephemeral
any longer than necessary or required by law messaging apps. At a minimum, clients must
or regulation. And, email remains the most have a defensible and effective electronic
PBCBA BAR BULLETIN
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