Extract from Doug Austin’s article “Use of Ephemeral Messaging Apps Can Make Your Document Retention Policy Disappear”
In the past year and a half, I’ve written about at least three cases involving the use of ephemeral messaging apps during litigation. As you can imagine, the ramifications for doing so weren’t great. But what about using ephemeral messaging apps before litigation – is that OK? Let’s take a look.
Three Cases Involving Ephemeral Messaging Apps
First, here are the three cases. Two involved organizations that began using ephemeral messaging after litigation commenced and one involved an individual plaintiff that deleted videos and images off his phone, claiming he didn’t realize that they would be deleted from the servers as well.
Doe v. Purdue, et al.: The individual plaintiff case, where the plaintiff produced a Snapchat download (to replace one with expired links) that was missing 11 Snapchat videos and images. The plaintiff claimed he deleted them off of his cell phone to free up space, not realizing that they would also be deleted from his Snapchat account and Snapchat servers entirely. Indiana Magistrate Judge Joshua Kolar believed that was the reason for the deletion, but still sanctioned him to pay Defendants’ attorneys’ fees and costs associated with litigating the motion and also permitted the parties to present evidence to the jury concerning the loss of the Snapchat data.