Extract from Petra Pasternak’s article “What to Know About Ephemeral Messaging in Litigation”
As the use of ephemeral messaging apps for personal and business communication grows, so does their prominence in legal disputes.
As their name suggests, ephemeral communications are transient, designed to automatically disappear after a specified amount of time. Some of the messaging platforms that commonly come up in legal disputes include WhatsApp, Snapchat, and Signal.
Although ephemeral messages can disappear quickly and permanently, businesses can still be legally obligated to preserve them if they are relevant to pending or anticipated litigation, or if the communications fall under other data retention requirements. To avoid civil and criminal penalties for failing to preserve discoverable information, legal teams need to understand the risks involved and have policies in place to manage compliance.
A string of penalties and spoliation sanctions levied against a variety of organizations over the last few years serves as a reminder that a laissez-faire approach is not sufficient — that just because these off-channel communications disappear, they don’t count.
