Electronic Discovery & Information Governance - Tip of the Month: eDiscovery Challenges and Tips in a WFH Environment

Scenario

Several months after the COVID-19 crisis ends, a company is being sued in federal court. While the company was on full-time telework during the crisis, its employees communicated with each other, customers, and suppliers not only through company-issued email and cell phones but via social media, using a patchwork collection of text and video messaging applications (“apps”), on both company-issued and personal devices. The company’s legal team needs to devise a litigation hold that will take into account the particular challenges of the ways in which the company’s employees communicated, and continue to communicate, via these devices and social media platforms.

Different Applications Present New Challenges. In recent years, lawyers have become increasingly familiar with discovery from different apps—from AOL Instant Messaging to Facebook to Slack. The newest wave of apps, however, present distinct risks and challenges because these programs automatically may destroy content when communications are shared with others, a feature known as “ephemeral messaging.” Ephemeral messaging apps often are used as a “virtual water cooler,” with many employees turning to these apps to serve the same purpose as face-to-face conversations among coworkers.

Use of ephemeral messaging apps in a business setting can create reputational risk in the form of the appearance of impropriety, business risk of enhanced scrutiny from government regulators, and legal risk through the inability to satisfy preservation and discovery obligations. To create an effective litigation hold, it is important to identify all platforms, messaging applications, video conference apps, and even chat rooms where potentially discoverable content could be located.

Ephemeral messaging apps, which include Wickr, Telegram, Snapchat, and Confide, have different attributes that need to be considered when developing litigation holds. For example, some ephemeral messaging services do not allow users to modify settings to preserve relevant messages. Confide, for instance, not only instantaneously deletes messages after they are read but also deletes from the application any evidence that a message ever existed. Litigation holds should caution against removal of old posts and advise custodians to disengage auto-delete functions on the relevant platforms. Litigation holds also should mandate that custodians block updates from being pushed to devices because updates can alter or erase metadata for messages before they can be collected.

Additionally, ephemeral messaging apps that provide the user with enhanced control over the message destruction settings should be changed to preserve relevant material. Wickr, for example, allows the user to set a time period ranging from seconds to months to retain sent information before it is discarded. A litigation hold should instruct custodians to change their app settings to retain information until it can be considered for collection.

Ephemeral Social Media Can Have Legitimate Business Applications. It is important to understand a company’s motivation behind using certain apps. A company may have legitimate business reasons to use ephemeral messaging apps, including protecting against data security risks, preserving confidentiality, and limiting the collection of personal data (data minimization). Additionally, employees using ephemeral social messaging apps during the COVID-19 crisis to communicate with colleagues, customers, or suppliers may not be seeking to erase or hide conversations but, rather, simply may be using technology that they are familiar with and trust to continue working during a technologically uncertain transition to full-time work from home. However, any applications that a company uses with “self-destructing” messaging functions should be avoided when discussing ongoing or threatened litigation that creates a duty to preserve relevant information.

“BYOD” and Privacy Settings Do Not Protect Information from Discovery. It is increasingly common for employees to use their personal devices for both work and personal use. As a result, employees run the risk of blurring the line between casual standards of personal communication and business communication strategies more likely to minimize risk. While employees may not perceive personal devices used for business purposes as sources of potentially discoverable information, and therefore as information that should be maintained and not destroyed, the same cannot be said of courts. In a recent case in the US District Court for the Central District of California, defendants’ deletion of social media posts was treated as spoliation and warranted an adverse inference instruction. Additionally, custodians should understand that privacy and privilege are not coextensive—enacting strict privacy settings on social media accounts or messaging apps does not create legal privilege or prevent discovery of the information stored therein.

Relevancy and Proportionality Standards May Limit Discovery. Parties are entitled to seek discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. Courts consistently have recognized that when inspection of personal electronic devices is sought, privacy interests can be a consideration in evaluating proportionality. In this time of extended social distancing—when in-person communication is strictly limited, if not forbidden—even more of Americans’ private conversations, video chats, text messages will be stored on their devices than ever before. If employees have shared information relevant to the case via social messaging apps, ephemeral or otherwise, producing that information should not necessitate that their entire personal device be turned over for discovery.

Summary. Previously orderly business communications may have been upended by the precipitous switch to telework in the wake of the COVID-19 crisis. While companies were rushing to get their technology platforms up to speed, many employees may have improvised and resorted to using a variety of messaging apps on their work and personal devices. A properly crafted litigation hold should take into account the specific features of the applications used by the company to ensure that potentially relevant messages are not destroyed prior to collection. Although recent events have created a situation where employees are more likely than ever to communicate with company colleagues and other work contacts by any means available, this extra level of consideration is not limited to, and will continue long past the resolution of, the COVID-19 crisis. Knowing up front how custodians at a company communicate, the devices they use, and any technical peculiarities of communications (i.e., self-destruct features) will help avoid any pitfalls during the discovery process.