Mike Quartararo: E-Discovery and Ephemeral Application Data

Extract from Mike Quartararo’s article “E-Discovery and Ephemeral Application Data”

It seems like every other day there’s a new messaging application that individuals can use to communicate. Applications like WhatsApp, Confidence, CoverMe, Dust, Hash, Signal, Snapchat, Telegram, and Viper all use encryption and/or provide for the permanent erasure of messages.

This is probably fine for personal or family communications. However, when it comes to business communication, users of these applications, and—perhaps more importantly—counsel who work for or who represent businesses that allow the use of these applications, need to be cognizant of the legal and ethical implications that flow from their use.

No Data Source Is Exempt From E-Discovery Obligations

As technology continues to develop programs that create data sources limited only by the technological imaginations of developers and innovators, it is clear there will be new sources of electronically stored information (ESI) or data.

For anyone who does not follow these developments, it is also clear that few, if any, sources of ESI are exempt from discovery requirements.

The standard, in almost every jurisdiction of the world, is one of relevance or materiality. If data is created and it is somehow relevant or material to a claim or defence in litigation, or to an investigation or regulatory inquiry, then arguably that data is subject to discovery obligations—that is, the need to preserve, collect, review, and produce the ESI.

Read more here (article is on page 9)